Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Part Two
I’m discovering as I continue to draft a follow-up to “Have To” History: Landmark Supreme Court Cases that it’s more and more difficult to keep things succinct as subject matter nears the 21st century. I’m sharing a few rough drafts along the way partly in hopes a few of you, my Eleven Faithful Followers, might find them interesting, and partly because nothing highlights the problems in a text like posting it live for all the world to see.
Some version of this Talmudic Tale will likely be in the upcoming book. Chances are good, however, that the final results will be considerably more succinct – which is both necessary and a tiny bit sad.
Recap of Part One: Kiryas Joel was (and is) a community of particularly insular Hasidic Jews (the Satmars) in New York. Most of their children attended private religious schools, but they asked the state for assistance providing care and education for their special needs children. Initial efforts to serve these particular children ran into conflict with recent Supreme Court rulings which struck down several public school efforts to serve high needs kids in religious institutions. New York responded by allowing the Satmars to create their own neighborhood and later a publicly funded neighborhood school tailored to their precise boundaries.
As a practical matter, it certainly solved the problem. Constitutionally, on the other hand...
Larkin v. Grendel’s Den (1982)
Just a decade before, the Supreme Court had ruled on a case having absolutely nothing to do with religious enclaves or public education, but which would nevertheless complicate the lives of the Satmars just as things were looking up for their special-needs kids.
Many states have laws limiting certain types of businesses in proximity to local schools, churches, etc. While the underlying motivation is no doubt community standards with a side of morality (having a strip club next door might prove disruptive or horrifying to the average synagogue or daycare), these zoning restrictions are justified in the name of preserving property values and limiting the exposure of young people to drugs and alcohol or whatever. (Banning a nudie bar for being a nudie bar, on the other hand, would violate the First Amendment.)
In the Massachusetts version, bars or other potentially seedy organizations were welcome to apply for state licensing wherever they liked. Churches or other specified organizations within a certain distance, however, had veto power over these applications. That way, if everyone was fine with a new business, the state wasn’t interfering. If someone objected, however, they’d simply reject the application.
Grendel’s Den was a popular restaurant frequented by students and professors from nearby Harvard University. In the late 70s, they applied for a liquor license. It was rejected based solely on the objections of the Holy Cross Armenian Catholic Church, which was located literally next door. The restaurant sued, claiming this law was a violation of the Establishment Clause. They won the case in district court, and federal appeals court, all the way up to the Supremes where they won as well.
The law would have been fine if it simply banned bars anywhere near churches. (Whether that’s good law or not wasn’t the point; it was constitutional.) But the state could not delegate any or all of its powers and responsibilities to religious institutions, the Court explained. In terms of the Lemon Test, that’s excessive entanglement. Religious people and organizations have the same voice as everyone else expressing their wishes to their representatives; they cannot, however, be appointed to replace them as lawmakers.
Was New York essentially doing the same thing with its solution to the Kiryas Joel dilemma? Was this unique arrangement basically handing over a state-funded public school to a religious group so they could run it as they saw fit?
Yes, yes it was. The Supreme Court determined in a 6 – 3 decision that New York had violated the Establishment Clause by making this arrangement, however well-intentioned it may have been. As to the specifics, however, the majority was somewhat divided. Justice David Souter wrote for the majority and was joined by Justice Harry Blackmun, Justice John Paul Stevens, and Justice Ruth Bader Ginsburg for all of it, and by Justice Sandra Day O’Connor for most of it. Justice Blackmun wrote a separate concurrence, as did Justice O’Connor. His was brief; hers was not. Justice Stevens wrote a third concurrence in which he as joined by Justices Blackmun and Ginsburg, and Justice Kennedy wrote an entirely separate concurrence in which he supported the outcome but took a very different (and lonely) road to get there. (The dissent was much more united, as it often was when Justice Antonin Scalia was stomping around breaking things. Whether this indicates whole-hearted agreement or the other dissenters simply enjoyed watching him tilt at jurisprudential windmills is unclear.)
In short, there was only general agreement among the majority about why New York’s solution violated the Establishment Clause, but substantial agreement among the minority as to why the other six justices were big stupid poo-poo heads who hated Jesus and America.
Justice Souter’s Majority (mostly, sort of) Opinion
Justice Souter wrote for the majority, such as it was. His argument had two primary points.
First, the Constitution certainly allows states to accommodate religious needs by alleviating specific burdens. This particular legislation, however, shot past accommodation and right into establishment, all without seeking less entangled ways to accomplish the same thing. Instead, the state created what Souter called an impermissible “fusion” of governmental and religious functions as in Grendel’s Den.
Second, accommodations for religious beliefs are generally constitutional if they apply equally to anyone with a similar claim or need. Refusal to take up arms and fight for one’s country, for example, is acceptable if based on deeply held religious or ethical beliefs – ANY deeply held religious or ethical beliefs. There was nothing in place to guarantee the next religious group unhappy with the education system would be granted their own public school to play with and bend to their will. This arrangement solely benefitted one religious group – the Satmars.
Concurrences (Justices Kennedy, Stevens, Blackmun)
Justice Kennedy concurred with the decision, but tied his objections to the initial drawing of political boundaries that allowed the Satmars to create their own little village. Had the exact same thing come about organically (as a result of voluntary associations and such), it would be fine. The intentional cooperation of the government in drawing the lines based on religion, however, he found problematic.
Kennedy also lamented the interference of Grand Rapids and Aguilar in what might otherwise have been a workable solution – the public school “annex” for special needs kids operating right next to a Satmar private religious school.
The decisions in Grand Rapids and Aguilar may have been erroneous. In light of the case before us, and in the interest of sound elaboration of constitutional doctrine, it may be necessary for us to reconsider them at a later date. A neutral aid scheme, available to religious and nonreligious alike, is the preferable way to address problems such as the Satmar handicapped children have suffered... But for Grand Rapids and Aguilar, the Satmars would have had no need to seek special accommodations or their own school district. Our decisions led them to choose that unfortunate course, with the deficiencies I have described.
Justice Blackmun wrote a very brief concurrence merely to assert that despite not being explicitly relied upon in this case, the Lemon Test still rocked and screw the haters. (He put it a bit loftier than that.)
Justice Stevens was nearly as succinct, but his concurrence (joined by Justices Blackmun and Ginsburg) took issue with the State’s decision to address the “panic, fear and trauma” experienced by special needs Satmar children in a public school setting by helping to re-insulate them, rather than teaching other children (and staff) how to respect their beliefs and needs. One major purpose of public schooling is to promote diversity and understanding, he argued, and this would have avoided constitutional messiness altogether. Instead, the state became an active participant in ensuring these children would remain Satmar, not by choice or informed consent as they aged, but by joining forces with their religious leaders to prevent them ever knowing the difference.
The question of how far the state should go to assist religious parents in keeping their children shielded from understanding or interacting with people different from them is a biggie, and one many prefer not to talk about. The First Amendment prohibits government from promoting or discouraging a particular faith or the idea of faith in general. Public schools are founded on the understanding that civilization requires a common set of community values – mutual respect, communal responsibility, civic participation, etc. When religious values openly conflict with a core mission of public education, accommodation requires accepting that a percentage of the community is actively working against what’s best for the whole. That doesn’t necessarily mean the State should swoop in and free fundamentalist babies from their sectarian daycares, but it certainly runs counter to the idea taxpayers should actively assist efforts to keep them in their cultural cocoons.
RELATED POST: Kiryas Joel v. Grumet (1994) – Part One
RELATED POST: Kiryas Joel v. Grumet (1994) – Part Three
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