Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Part Three

November 14, 2020June 4, 2023 ~ Blue Cereal

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.

Recap of Parts One & Two: 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 rand 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. The Supreme Court struck down this arrangement in a 6 – 3 decision, but even majority justices had differing ideas as to the specifics. The arrangement violated the Establishment Clause. Beyond that…

Justice O’Connor’s Concurrence (and Advice Column)

Justice O’Connor (concurring in part and concurring in the judgment), took the same “you know what you should have done?” approach as she had in Wallace v. Jaffree (1985):

The question at the heart of this case is: what may the government do, consistently with the Establishment Clause, to accommodate people’s religious beliefs? The history of the Satmars in Orange County is especially instructive on this, because they have been involved in at least three accommodation problems, of which this case is only the most recent…

O’Connor walked readers through these accommodations, lamenting the Court’s decisions in Grand Rapids and Aguilar along the way. It wasn’t a purely historical journey; she was leading up to something.

There is nothing improper about a legislative intention to accommodate a religious group, so long as it is implemented through generally applicable legislation. New York may, for instance, allow all villages to operate their own school districts. If it does not want to act so broadly, it may set forth neutral criteria that a village must meet to have a school district of its own; these criteria can then be applied by a state agency, and the decision would then be reviewable by the judiciary.
A district created under a generally applicable scheme would be acceptable even though it coincides with a village which was consciously created by its voters as an enclave for their religious group. I do not think the Court’s opinion holds the contrary.

Want to guess how Kiryas Joel schools operate today? (Come on, take a guess!) It took a few versions before one eeked through federal court approval, but New York eventually figured out how to write a law that only applied to Kiryas Joel without mentioning anything in it that made it clear it could only apply to Kiryas Joel. Thanks, nice judge lady!

I also think there is one other accommodation that would be entirely permissible: the 1984 scheme, which was discontinued because of our decision in Aguilar. The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion. All handicapped children are entitled by law to government-funded special education…
If the government provides this education on-site at public schools and at nonsectarian private schools, it is only fair that it provide it on-site at sectarian schools as well.

One almost gets the impression Aguilar was ripe for the overturnin’ – say, maybe… three years later?

Finally, O’Connor takes a detour down “Lemon Sucks” Lane:

One aspect of the Court’s opinion in this case is worth noting: Like the opinions in two recent cases, Lee v. Weisman (1992), Zobrest v. Catalina Foothills School Dist. (1993), and the case I think is most relevant to this one, Larson v. Valente (1982), the Court’s opinion does not focus on the Establishment Clause test we set forth in Lemon v. Kurtzman (1971).
It is always appealing to look for a single test, a Grand Unified Theory that would resolve all the cases that may arise under a particular clause. There is, after all, only one Establishment Clause, one Free Speech Clause, one Fourth Amendment, one Equal Protection Clause…
But the same constitutional principle may operate very differently in different contexts… And setting forth a unitary test for a broad set of cases may sometimes do more harm than good. Any test that must deal with widely disparate situations risks being so vague as to be useless…

It’s nice that O’Connor and Scalia had at least one subject on which they could agree. Speaking of which…

Justice Scalia’s Dissent

Chief Justice William Rehnquist and Justice Clarence Thomas joined Justice Antonin Scalia in his 6000+ word dissent, which led off with a Scalia’s characteristic venom, sarcasm, and intentional point-missing:

The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar. The Grand Rebbe would be astounded to learn that, after escaping brutal persecution and coming to America with the modest hope of religious toleration for their ascetic form of Judaism, the Satmar had become so powerful, so closely allied with Mammon, as to have become an “establishment” of the Empire State.

Even Scalia couldn’t have genuinely believed that the First Amendment only kicked in once an institution attained a specific number of members or reached a preset threshold of political power. Playing on the struggles of the Satmar to set up the straw argument that the issue was one of dominance over the rest of New York was disingenuous at best, red-meat ranting better suited to Fox News than the nation’s highest court.

And the Founding Fathers would be astonished to find that the Establishment Clause – which they designed “to insure that no one powerful sect or combination of sects could use political or governmental power to punish dissenters” … has been employed to prohibit characteristically and admirably American accommodation of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion.

Underneath the elitist spittle lies a potentially valid assertion – that the State in this case was simply accommodating a tiny religious group in a practical and neutral way, and that there was no reason to assume the New York Legislature wouldn’t treat others equitably as well. If they proceeded to violate that assumption, the courts would still be there.

Scalia distinguished the political community of Kiryas Joel (which just happened to be full of Satmars) from the religious body of Satmars (who had chosen to live together in Kiryas Joel). A grant of governmental authority to the Satmars would be a potential constitutional violation, but a grant of local governmental authority to a community which just happens to share a religion was not. By the majority’s reasoning, Scalia argued – almost rationally – neither Utah nor New Mexico could have been admitted as States, given their respective monolithic cultures at the time.

Like Abraham challenging God over the fate of Sodom and Gomorrah, Justice Scalia proceeds to asks how many non-Satmars it would have taken for the arrangement to magically become constitutional. Two? Five? A dozen? For a moment, he struck a productive blend of snark and insight – an example of what the rest of his opinion could have accomplished if only he’d resisted the urge to disparage his colleagues personally while mocking their arguments like a middle schooler.

JUSTICE SOUTER’s steamrolling of the difference between civil authority held by a church, and civil authority held by members of a church, is breathtaking. To accept it, one must believe that large portions of the civil authority exercised during most of our history were unconstitutional… The history of the populating of North America is in no small measure the story of groups of people sharing a common religious and cultural heritage striking out to form their own communities. It is preposterous to suggest that the civil institutions of these communities, separate from their churches, were constitutionally suspect…
I have little doubt that JUSTICE SOUTER would laud this humanitarian legislation if all of the distinctiveness of the students of Kiryas Joel were attributable to the fact that their parents were nonreligious commune dwellers, or American Indians, or gypsies. The creation of a special, one-culture school district for the benefit of those children would pose no problem. The neutrality demanded by the Religion Clauses requires the same indulgence towards cultural characteristics that are accompanied by religious belief…
JUSTICE STEVENS’ statement is less a legal analysis than a manifesto of secularism. It surpasses mere rejection of accommodation, and announces a positive hostility to religion – which, unlike all other noncriminal values, the state must not assist parents in transmitting to their offspring.

He’s a bit gentler on Justices Kennedy and O’Connor, each of whom agreed with at least part of his position in their concurrences. Unable to help himself, however, he blows past O’Connor’s criticism of the Lemon Test and focuses instead on the inadequacy of her solution:

Unlike JUSTICE O’CONNOR… I would not replace Lemon with nothing, and let the case law “evolve” … To replace Lemon with nothing is simply to announce that we are now so bold that we no longer feel the need even to pretend that our haphazard course of Establishment Clause decisions is governed by any principle. The foremost principle I would apply is fidelity to the longstanding traditions of our people, which surely provide the diversity of treatment that JUSTICE O’CONNOR seeks, but do not leave us to our own devices.

Lest the reader forget his general disdain for the lesser beings Scalia was daily forced to endure, he concludes with a tidy little summary of the Court’s sins against reason, religion, and America:

The Court’s decision today is astounding. Chapter 748 involves no public aid to private schools, and does not mention religion. In order to invalidate it, the Court casts aside, on the flimsiest of evidence, the strong presumption of validity that attaches to facially neutral laws…
This is unprecedented – except that it continues, and takes to new extremes, a recent tendency in the opinions of this Court to turn the Establishment Clause into a repealer of our Nation’s tradition of religious toleration.

No doubt Scalia is somewhere complaining still, either about the shoddy harp-playing or the lack of air conditioning. Either way, he’s no doubt mocking former colleagues for their roles in the design.

Aftermath

The Supremes would continue to struggle with the line between accommodating religious beliefs and facilitating them beyond constitutional boundaries. Usually, this would involve more familiar scenarios – allowing vouchers to be used at religious schools, arranging for students to lead collective prayer at school events, or including religious symbols in holiday arrangements on public lands.

The Court would also waver on the precise application and usefulness of the Lemon Test. Though criticized by many justices along the way, it continued to prove useful enough to at least work its way into the discussion more often than not.

Kiryas Joel is still going strong, relatively speaking, and recently voted to separate itself even more completely from the Town of Monroe of which it was technically a part. As of 2019, Palm Tree is the first entirely ultra-orthodox town in the U.S.

RELATED POST: Kiryas Joel v. Grumet (1994) – Part One

RELATED POST: Kiryas Joel v. Grumet (1994) – Part Two

Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Part Two

November 12, 2020June 4, 2023 ~ Blue Cereal

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?

The Decision(s)

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

Board of Education of Kiryas Joel Village School District v. Grumet (1994) – Part One

November 10, 2020June 4, 2023 ~ Blue Cereal

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. There’s so much relevant context for each case and potential applications are far more immediate… it’s difficult at times to know what’s essential and what’s not.

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 material 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.

Three Big Things:

1. In an effort to accommodate a particularly insular community of Hasidic Jews (the Satmars), the State of New York created a neighborhood and later a publicly funded neighborhood school tailored to their precise boundaries. Most children attended private religious schooling; the public school served only special needs kids from the Satmars and surrounding Hasidic communities.

2. The Supreme Court found this to be a violation of the Establishment Clause, although admittedly not by much. The lines between accommodating religious beliefs and unconstitutionally supporting them were (and are) often complicated and difficult to agree upon.

3. Prior decisions regarding the “entanglement” of the State in religious education required reconsideration. There might actually be less mess and conflict in allowing states a bit more flexibility in how they managed their educational resources.

Context

The circumstances of Kiryas Joel were unusual enough that the logistics themselves offer little to guide future students, parents, educators, or administrators. For anyone not living or working in a carefully constructed community of cultural outliers who end up with their own state-financed school district for special needs children, there seems (at first glance) to be little reason to devote more than a few lines to the case and its outcome.

And yet, taken in context, the case offers several points of interest and possible instruction – even for those uncertain what Hasidic Judaism even means.

Kiryas Joel offered an interesting case study in the impact of unintended consequences as it struggled to reconcile recent precedent with the circumstances actually before the Court. Justices wrestled with the validity and usefulness of the “Lemon Test” as well as the appropriate lines between accommodating free exercise vs. propping up religion with State resources. Many of the issues involved were minor variations on those shaping the so-called “school choice” debate evolving at around the same time. It’s easy enough to distinguish between free exercise and establishment in theory, but when stirred together with the State’s vested interest in universal education, the rights of special needs children, religious tensions, economic realities, and a little political pragmatism, it’s all but impossible to meaningfully isolate either ideal.

Finally, Justice Antonin Scalia yet again proved himself incapable of merely disagreeing with a decision or the reasoning behind it without sarcastically eviscerating everyone involved. In this case, however, Justice David Souter, writing for the majority (or at least the plurality – it’s complicated), rolled his rhetorical eyes and played the “there goes crazy Uncle Tony again” card. “Justice Scalia’s dissent is certainly the work of a gladiator…” he wrote, “but he thrusts at lions of his own imagining.”

So what happened in Kiryas Joel to spark this particular kerfuffle?

Background

Satmar Hasidic Judaism is a particularly strict branch of the faith which practices separation from the world and comes with its own religious laws and traditions. Members live in tight, crowded communities where they primarily speak Yiddish and avoid television, radio, newspapers, and the like. Men are in charge, no one uses birth control and, while peaceful, they don’t play well with others. On the other hand, they do rock their hat game. The modern shtreimel is simply fearless.

Kiryas Joel is an enclave of Satmars in New York’s Hudson Valley. Property in the area was purchased by the Satmars in the 1970s for the sole purpose of forming this exclusive community; it was quickly filled and became largely self-sufficient. Children are educated in private yeshivas, where the focus was Jewish law and traditions. Most daily interactions are governed by Jewish law rather than the state.

Like any community of 8,000 or so, a small percentage of Satmar children were special-needs. The Satmars weren’t going to win any participation trophies with larger society, but they paid their taxes like everyone else and asked the local school district to step up and help. For a community priding itself on isolationism, someone in the mix must have been aware of precedents like Witters v. Washington Dept. of Services for the Blind (1986), Meek v. Pittenger (1975), Committee for Public Education and Religious Liberty v. Nyquist (1973), all the way back to Everson v. Board of Education (1947). (Zobrest v. Catalina Foothills School District was decided a year before Kiryas Joel, meaning the cases were working their ways through the system at roughly the same time.)

Also in the mix was the Individuals with Disabilities Education Act (IDEA) signed into law by President Ford a few years prior. IDEA was a well-intended piece of legislation which nevertheless created infinite logistical and economic nightmares for districts now required to provide intensive levels of service for a very small number of children while being slandered by the same lawmakers who passed it for not being more cost-effective – you know, like the private religious schools who aren’t bound to do anything they don’t feel like doing or accept anyone they don’t feel like accepting.

In any case, Kiryas Joel was on firm constitutional ground making this particular request, and the local public school district readily complied. Initially this meant providing services in an annex attached to one of Kiryas Joel’s private religious institutions, an arrangement which was barely a year old when the Supreme Court announced its decisions in Grand Rapids v. Ball (1985) and Aguilar v. Felton (1985). In each of these cases, public school assistance to students in private religious institutions was ruled to violate the “excessive entanglement” part of the Lemon Test and thus ruled unconstitutional. So… time for Plan ‘B’, apparently.

The district began transporting special needs Satmar kids off to their own facilities and continued to educate them there. The problem was, these public schools were, well… public – as in, they took all comers and did their best to make sure everyone got along and were treated more or less the same. With this came a certain lack of sensitivity to the ways of the Satmars, which may have reflected well-intentioned ignorance, a rejection of their culture as weird or undeserving of accommodation, or some combination of both.

In any case, it didn’t go well. In one egregious example, the Hasidic kids were apparently taken to McDonald’s for lunch along with everyone else. (For those of you not rolling Hasidic, their menu isn’t exactly kosher.) In another, a disabled Satmar child was dressed up as Rudolph the Red-Nosed Reindeer for a holiday pageant – another major no-no for super-conservative Jews, or… any Jews, really.

These sorts of things would create issues for any child, but these were high-needs kids who weren’t always able to process the world at maximum efficiency anyway. Plus, they didn’t just come from a different faith – they came from an entirely different world. The people were different, the clothes were different, the dynamics and expectations and norms were all completely different. The Satmars quickly pulled their kids back out of Insane Heretic School, but were left with their original dilemma – how to afford special needs education for a few dozen kids.

The State Legislature of New York, with the approval of Governor Mario Cuomo, offered a solution. They created a new school district whose boundaries just happened to correspond exactly with the village of Kiryas Joel. Now there was a public school composed entirely by Satmar kids. Theoretically this could have included any of them, but – wacky coincidence – only the special needs kids’ families opted to have them attend. As it turned out, another few dozen came from outside the village, making a total school population of around 40.