Copyright 1994 American Lawyer Media, L.P.  
The Recorder
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January 24, 1994, Monday
SECTION: LETTER TO THE EDITOR; Pg. 9

HEADLINE: Wall of Separation Increases Freedom -- And Helps Religion

BYLINE: David Saperstein, Director, Religious Action Center of Reform Judaism, Washington, D.C.

BODY:
Bruce Fein argues that the New York appeals court decision striking down Kiryas Joel's all-Hasidic school district exemplifies the basic flaws of Lemon v. Kurtzman, ("In a Religious Season, Considerations of State Influence," Dec. 27). Fein suggests that the court's reasoning in Board of Education of the Kiryas Joel Village School District v. Grumet -- prohibiting religious accommodation that entails the creation of a distinct school district along religious lines -- would require that we declare the entire state of Utah unconstitutional. Or, as others have asked, what makes [the school district in] Kiryas school districts which, due to demographics, are predominantly or entirely Mormon or fundamentalist Christian?

What makes Kiryas Joel different is the difference between de facto and de jure. There are many things that states may allow to exist by happenstance that they may not constitutionally create by law. Although thousands of school districts are almost entirely white due to demographic reasons, states cannot intentionally create an all-white, all-Hispanic, all-black, all-male or all-Jewish school district.

Government officials designed the Kiryas Joel school district explicitly and intentionally to create a district of children of one religion. The effect of the state action was to benefit this one religious group. In turning over state and local power to a religious group, New York state breached the wall of separation in a manner the framers explicitly intended to prohibit and which the U.S. Supreme Court struck down in [Larkin v] Grendel's Den (1982). The religious predominance in the Mormon or fundamentalist districts happened circumstantially, and if the demographic patterns of those communities changed, no one would suggest changing school district boundaries. Since the very purpose in Kiryas Joel was to guarantee a wholly Hasidic Joel was to guarantee a wholly Hasidic Jewish public school district, if non-Hasidim suddenly made up 60 percent of the new district's school for handicapped children, the Hasidic parents would be right back where they started and would seek to redraw the lines.

To allow accommodation of the religious needs of the Hasidic children by creating a school district along religious lines is therefore not only unconstitutional, but dangerous, encouraging other religious groups to accommodate their needs by appealing to the state for separate school districts. Fein's view represents a major step toward the balkanization of American education and society that is harmful to us all.

Finally, the danger of Fein's general attack on Lemon is that it might just achieve its unstated goal: weakening the wall separating church and state, ostensibly to further religion in America. To the contrary: The very well of separation which Lemon helped secure has kept government out of religion, allowing religion to flourish in the United States with a diversity and vitality unmatched anywhere in the Western world today -- including in those nations with established, preferred, or subsidized religions. In every nation where the king's penny flowed to religious institutions, the king went with it -- and the freedom of government, religion and religious people all suffered.