Court rules against religious school district

Christian Century, July 13, 1994

In a 6-3 vote the U.S. Supreme Court said June 27 that creation of a special school district for a Hasidic Jewish sect violated the Constitution. According to the court, the school district in question--for disabled Hasidic children in the New York village of Kiryas Joel--went beyond permissible "accommodation" of religion and thus contravened the Constitution's First Amendment ban on "establishment" of religion.

Writing for the majority, justice David Souter said creation of the district by the New York state legislature "fails the test of [government] neutrality" toward religion because it "sigles out a particular religious sect for special treatment." Reaction to the ruling followed the divisions within the religious community that the case had generated when it first reached the court, with advocates of strict separation hailing the decision and groups urging a more porous "wall of separation" criticizing the ruling.

"The Supreme Court today refused to allow |religious, apartheid' in America's public schools," said Barry Lynn, executive director of Americans United for Separation of Church and State. "The door is now firmly shut to other religious groups that may have been planning to demand their own taxpayer-financed |public' schools."

But Michael Whitehead, general counsel for the Southern Baptist Christian Life Commission, contended that the court was acting like "the Supreme School Board," saying it "declares illegal a solution which parents and local officials found to be in the best interest of educating their handicapped children." He called the ruling "not neutral" and "hostile to religion." According to Whitehead, "Religious children who had the right to special education assistance have lost that right because of their religion. Now they are doubly disabled-religious parents are their second handicap."

The case arose following action by the 1989 New York legislature setting up a special school district for the village so that students in need of government-funded special education services did not have to be taught along with non-Hasidic students. Other Hasidic children in the village attend private religious schools. Creation of the school district was challenged by Louis Grumet, executive director of the New York State School Boards Association.

The American Jewish Congress, which opposed the Orthodox Jewish sect in the courts, said the ruling "can hardly come as a surprise since [the district's] creation was literally an illegal establishment of religion." The Anti-Defamation League also welcomed the decision, saying it "sent forth a loud and clear message that it will not condone a religious community's attempt to assume governmental functions."

The case had sharply divided the religious community, with a number of groups seeking to modify current law on church-state separation. They urged that the justices use the opportunity not only to support the special school district but also to scrap the two-decade-old "Lemon test" used to measure whether a government action benefiting religion is constitutionally permissible. Lemon was barely mentioned in the court's ruling. However, five of the justices indicated a willingness to overturn the court's 1985 ruling that declared that government-funded services to children with disabilities cannot be provided at parochial schools.

Justice Antonin Scalia, who is developing a reputation for his outspokenness, called Souter's opinion, among other things, "astounding," "presumptuous" and "facile." In writing for three dissenters Scalia said, "It is presumptuous for this court to impose--out of nowhere--an unheard-of prohibition against proceeding in this manner upon the legislature of New York state." Souter replied that "Justice Scalia's dissent is certainly the work of a gladiator, but he thrusts at lions of his own imaging." Scalia was joined in his dissent by Chief Justice William Rehnquist and Justice Clarence Thomas.

Souter, in the majority opinion joined by Justices Harry Blackmun, John Paul Stevens and Ruth Bader Ginsburg and in part by Justice Sandra Day O'Connor, wrote, "We do not deny that the Constitution allows the state to accommodate religious needs by alleviating special burdens." But accommodation, he said, "is not a principle without limits," adding: "It is clear that neutrality among religions must be honored." Justice Anthony Kennedy wrote a separate concurring opinion.