Why 'Kiryas Joel' Matters
ONCE AGAIN, THE SMALL NEW YORK VILLAGE of Kiryas Joel is at
the center of a constitutional storm. A recent decision by New York's
highest court not only undermines New York's ability to educate disabled
children in the Village, whose residents are all Satmar Hasidim. The legal
theories embraced by the court could also endanger cutting-edge
initiatives across the country -- from Arizona to Wisconsin to Florida -- to
reform education through parental-choice programs and hamstring
government efforts to accommodate the special needs of minority
religions. The stage may well be set for another church-and-state
showdown in the United States Supreme Court.
This month, the New York Court of Appeals struck down,
by a 4-3 vote, the state legislature's third and most recent effort to
provide Kiryas Joel's learning-disabled children with the special-education
services to which they are already entitled under law. The court held
that the latest law permitting the Village to operate its own public school
was, like the first two, an unconstitutional "establishment" of religion. It
didn't matter to the court that the school is public, not parochial. (In fact --
ironically -- some Village residents have objected to the school for
precisely this reason.) Instead, the court focused on the fact that the
Village's residents are all Hasidim, and it concluded that the law
authorizing the creation of the Kiryas Joel public school unconstitutionally
singled out the Village -- and, therefore, Orthodox Judaism -- for special
treatment.
But why should the mere fact that the Village's residents
are Hasidic Jews preclude it from operating a public school? After all, no
court has ever held that the Village itself is unconstitutional or invalid. As
Justice Antonin Scalia once noted, there are many towns, cities, and
counties -- even States -- whose residents, by and large, share the same
religious faith. Are the public schools in Rich County, Utah (whose
citizens are 100% Mormon) and Kennedy County, Texas (100% Roman
Catholic) now constitutionally suspect? If the Village of Kiryas Joel can
collect taxes, enact laws, spend money, and sweep streets, why can't it
have a public school?
The Court of Appeals' recent decision is only the latest
episode in Kiryas Joel's decade-long effort to secure for its
disadvantaged children the educational assistance to which they are
entitled. Time and again, the legislature has attempted to accommodate
the linguistic and cultural needs of the Village's Hasidic residents and to
guarantee that the Village's children are not prevented, simply because of
their distinctive religious heritage, from receiving special-education
services. These attempts were not part of a plan to "establish" religion or
confer special privileges on the Satmar Hasidim, but were instead a
reasonable and commendable response to Aguilar v. Felton, a 1985
Supreme Court decision -- which was repudiated by the Court in 1997 --
holding that children in Kiryas Joel could not receive government-funded
special-education services in the Village's religious schools.
The legislature's first effort, in 1989, was straightforward
-- it specifically created a separate public-school district within the Village
boundaries. The public school served only those children in need of
special-education services; the other children in the Village continued to
attend religious schools. But before the school's doors even opened,
critics filed a lawsuit claiming that the law authorizing the Kiryas Joel
public school violated the constitutional separation of church and state.
The case went all the way to the United States Supreme
Court, which ultimately decided, in 1994, that the 1989 law was
unconstitutional. Four Justices held that the law was invalid because it
delegated government power to a religious group. But the two others --
Justices O'Connor and Kennedy -- who provided the crucial votes took
care to emphasize that it was the legislature's method, not its goal of
accommodating the special needs of Hasidic children, that offended the
First Amendment. Justice O'Connor in particular made clear that, although
this particular law violated the First Amendment, because it singled out
explicitly and only the Village of Kiryas Joel, New York could still achieve
the same ultimate goal through a more general, neutral law. And Justice
Kennedy also wrote separately to underscore that the Constitution not
only permits but values government accommodation of religion.
Since then, the New York legislature has tried twice to
follow carefully these "swing" Justices' blueprint for a constitutional
accommodation, using religion-neutral laws that do not single out Kiryas
Joel for special treatment. Both efforts have failed in the New York
courts. In 1994 -- four days after the Supreme Court's decision --
lawmakers passed a neutral and generally applicable law setting out
various secular criteria that a locality had to meet in order to create its
own district. The critics sued again, claiming that, notwithstanding its
neutral terms, the second law in fact applied only to the Village of Kiryas
Joel.
In 1997, the New York Court of Appeals agreed, and held
that the second law, like the first, violated the Establishment Clause. The
court acknowledged that Justice O Connor had provided a "blueprint" for
a law that might survive constitutional challenge," and it conceded that
several of the second law's religion-neutral criteria were valid. However,
it objected to the provision limiting eligibility to cities, towns, or villages
already in existence when the 1994 law was passed. Given this
limitation, the court decided that, although "well-intentioned," the second
law, like the first, effectively channeled its benefits to a "single sect."
Importantly, the Court conceded that the legislature was "perfectly within
its authority in attempting to cure the constitutional infirmity of a prior law."
But the court concluded that, once again, the legislature had missed the
mark, and had "established" religion while trying to educate children.
Thinking that "the third time's a charm," the legislature went
back to the drawing board and enacted a third law, one that followed the
"blueprints" provided by Justice O'Connor and the New York Court of
Appeals. The third effort included only those criteria that the Court of
Appeals had explicitly approved in its opinion, and omitted precisely those
criteria to which the court had objected. Another lawsuit followed and,
again, on May 11, the Court of Appeals invalidated the law, holding that
the third law, like the first two, had "the impermissible effect of advancing
one religious sect." As a result, unless the legislature acts quickly, the
special-needs youngsters of Kiryas Joel might well be once again shut
out of the public schools. And it is anyone's guess whether the Supreme
Court will step in and agree to address a second time the constitutionality
of New York's efforts to accommodate the Hasidim in a manner
consistent with the Constitution.
But the Supreme Court should take the case, because the
New York court got it wrong, and its mistake is a dangerous one. The
Court of Appeals' decision conflicts with the controlling opinions of
Justices O'Connor and Kennedy in the first Kiryas Joel case, and its
constitutional reasoning is faulty. Permitting Kiryas Joel to operate a
public school, and permitting the Village's special-needs children to
receive the help they need and to which they are entitled in a culturally
appropriate environment, only "accommodates," it does not "establish,"
religion.
First of all, strangely enough, the New York courts have
regarded the fact that the legislature keeps trying, despite legal setbacks,
to achieve its praiseworthy goal of accommodating the special needs of
Satmar children in Kiryas Joel as evidence of an unconstitutional intent to
establish, prefer, or endorse Hasidism. But, in our system, legislatures
are supposed to respond to courts' constitutional rulings. That's what
"judicial review" is all about. The First Amendment does not mean that
legislatures get only one bite at the apple when they attempt to
accommodate religious minorities. If they get it wrong the first time (or the
second, or the third), the Constitution permits them to try again.
In addition, the Court of Appeals insisted that even though
the latest law used neutral, secular criteria, and did not explicitly single
out Kiryas Joel for special treatment, it was still unconstitutional because
only two localities currently qualify to set up their own school districts.
But when Justice O'Connor drew up her constitutional blueprint the first
time around, she didn't say that New York had to somehow guarantee
that villages and towns besides Kiryas Joel would choose to take
advantage of the law. She said only that the Constitution requires
religion-neutral criteria. In effect, the court struck down the law because
Kiryas Joel, whose residents are devoutly religious, happened to be first
in line to take advantage of the law's provisions. But it is blatant -- and
unconstitutional -- discrimination on the basis of religion to hold that a
village or town is disqualified from pursuing a particular benefit that is
available to other similarly situated localities simply because its residents
share the same faith.
And finally, the court criticized the legislature's
accommodation of the Kiryas Joel Hasidim on the ground that the "class
benefitted" by the law was not "sufficiently broad." But almost any effort
to accommodate the beliefs and practices of a minority religion will
"benefit" a relatively small "class" -- namely, the adherents of that minority
religion. The court's opinion implies, incorrectly, that the distinct practices
and beliefs of religious minorities can only be accommodated by accident.
The Supreme Court should correct the Court of Appeals'
mistakes, and not only because these errors threaten the education and
rights of disadvantaged children. The court's ruling, if followed
elsewhere, could have serious effects in other constitutional
controversies. For example, Wisconsin's Supreme Court recently ruled
that Milwaukee's school-voucher program -- which permitted parents to
use publicly funded vouchers at religious schools -- did not violate the
First Amendment. In keeping with a long line of Supreme Court decisions,
the Wisconsin court relied on two key facts: (1) the program's criteria for
identifying eligible beneficiaries were completely neutral regarding
religion, and (2) the decision to use vouchers at religious schools was
made by these beneficiaries -- parents -- not by the government.
But the New York law that authorized the creation of the
Kiryas Joel public school employed also used eligibility criteria that had
nothing to do with religion. Unlike the Wisconsin court, the New York
court disregarded the law's neutrality, and instead relied on the fact that
the residents of the Village of Kiryas Joel are religious. Given the law's
religion-neutral criteria, the religious make-up of the Village shouldn't
matter any more than the fact that many beneficiaries of the Milwaukee
program chose religious schools for their children. As the Supreme Court
re-affirmed just two years ago in Agostini v. Felton, the constitutionality
of a government program does not depend on the number of that
program's religious beneficiaries.
The Kiryas Joel decision also threatens to undermine the
recent decision by a federal appeals court that a recent amendment to the
Medicare and Medicaid laws, which was clearly intended to
accommodate the particular religious needs of Christian Scientists, did not
violate the Establishment Clause. In Children's Healthcare Is a Legal
Duty, Inc. v. DeParle, the court emphasized that the amendment used
generic, not sect-specific, criteria to identify which "religious non-medical
health care institutions" may participate in the Medicare and Medicaid
programs. It refused to invalidate the amendments simply because
Christian Science "sanatoria" were the only institutions that, currently,
meet those criteria. But if future courts were to follow the New York
court's lead, they might well strike down such accommodations, despite
their neutral language, on the theory that they currently benefit only one
specific "sect." Such rulings would hamstring severely lawmakers' ability
to accommodate the needs of adherents of minority religions.
Our Constitution requires neutrality, not hostility, toward
religion and religious believers. Government accommodation of religion is
as much a part of our legal heritage as government separation from
religion. In light of these well-established principles, the New York
legislature has done its job admirably in the Kiryas Joel case. It has
struggled to achieve the noble and legitimate purpose of educating
disabled children in a culturally sensitive manner, using methods that can
withstand constitutionality scrutiny. Unfortunately, the New York Court of
Appeals forgot that, in law as in life, "if at first you don't succeed, try, try
again."
Jewish World Review May 25, 1998 / 10 Sivan, 5759
By Richard W. Garnett
Richard W. Garnett is one of the lawyers for the Kiryas
Joel Village School District and is an associate at the Washington, D.C.
law firm of Miller, Cassidy, Larroca & Lewin, L.L.P. Send your comments to him by clicking here.