On Law


Jewish World Review May 25, 1998 / 10 Sivan, 5759

Why 'Kiryas Joel' Matters


By Richard W. Garnett

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.

Econophone 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."


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.

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©1999, Richard W. Garnett