To Sleep, Perchance To Sue…

Mary SleepingI’m working on a follow-up to “Have To” History: Landmark Supreme Court Cases which focuses on cases related to church-state issues in education. Unlike this blog, the book is intended to be a relatively neutral resource, focused on breaking down cases into plain, simple English with a little historical context and references to related cases rather than a parade of snark and hyperbole designed to throw blue meat to the liberal masses.

I mean, I’m keeping a pithy comment here and there just to give it some color, but I’m hoping for something damn near professional by the time it’s done. As I get to cases decided in this century, however, things get increasingly poignant and at times potentially pungent. Many of the justices writing these opinions are still on the bench, and it becomes increasingly difficult to frame the issues as foundational for current jurisprudence – because they ARE current jurisprudence.

This particular case involves the hiring and firing of private school teachers in religious schools. What I’m currently wrestling with is an apparent contradiction between how the Court treats private religious schools when it comes to school choice (“hey, these are just schools doing school things for valid school reasons like any other schools, except they happen to have a religious point of view… give them all the tax money or it’s religious discrimination”) and how it treats the same religious schools when they’re firing teachers for being old or getting sick (“hey, these are religious institutions whose whole function is spreading their faith… you can’t hold them accountable for anything they do or else it’s religious discrimination”). Now, let me be clear – I realize it’s certainly not that simple. The devil is in the–

Actually, that’s probably not an appropriate idiom with this specific topic. Sorry about that.

The point is, despite what my Twitter feed and periodic ranting might suggest, I doubt it’s as black and white as my summary above. What I’m not yet certain of is exactly how not black and white it is. That will require a little more reading of people smarter than me and – realistically – some waiting to see what the courts do going forward. What is clear is that relgious schools occupy something of a paradoxical zone in which they’re being granted increasing benefits at the expense of public education while being held to fewer standards or expectations. They’re benefitting from both the “valid, secular” function they claim to serve and from their religious status and mission, which is generally proclaimed as their top priority. Those two things needn’t always be in conflict, but let’s be honest – in the 21st century, they very often are. 

In any case, let’s get to it. Here’s my current draft of “Worth A Look: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012).” Could there be a catchier title?

Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission. Hosanna-Tabor expressly charged her with “lead[ing] others toward Christian maturity” and “teach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church.” In fulfilling these responsibilities, Perich taught her students religion four days a week, and led them in prayer three times a day. Once a week, she took her students to a school-wide chapel service, and—about twice a year—she took her turn leading it, choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible. During her last year of teaching, Perich also led her fourth graders in a brief devotional exercise each morning. As a source of religious instruction, Perich performed an important role in transmitting the Lutheran faith to the next generation.

In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception…

It is true that her religious duties consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects… The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation’s finances, supervising purely secular personnel, and overseeing the upkeep of facilities…

Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer…

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission… [T]he First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

(from the Court’s Majority Opinion, by Chief Justice John Roberts)

Cheryl Perich was a teacher at Hosanna-Tabor Evangelical Lutheran Church and School. Hosanna-Tabor classified its teachers as either “called” or “lay” instructors, preferring those “called” but accepting “lay” when necessary to fill positions with qualified candidates. Perich began as a “lay” instructor, but was asked to consider becoming “called,” which she did. The process required several theology courses, extra religious training, and approval by the larger church body. Her daily duties didn’t noticeably change, but she was at that point considered a “commissioned minister” of the church.

Perich was diagnosed with narcolepsy and missed part of the 2004-2005 school year. After extended sick leave and approval from her doctor, she notified Hosanna-Tabor that she was ready to return in February. By that time, the school had hired a long-term sub and suggested maybe she wasn’t as ready as she thought. They offered to pay part of her ongoing health insurance premiums if she’d retire without making a fuss, and her principal hinted she was probably going to be fired anyway so why not take the deal – and her narcolepsy – and make things easy for everyone, K?

She didn’t.

Perich informed Hosanna-Tabor that she’d spoken to an attorney and that according to the Equal Employment Opportunity Commission and the Americans with Disabilities Act, they couldn’t fire her for having narcolepsy. Hosanna-Tabor replied that shut-up-yes-we-can, and besides, we’re not firing you for having narcolepsy – we’re firing you for talking to a lawyer about us firing you for having narcolepsy. That was, they explained, very hurtful to their working relationship and thus against church policy.

Unlike, for example, firing someone for having narcolepsy.

As the case moved through the court system, the central question wasn’t so much whether Perich had been fired for having narcolepsy or for not wanting to be fired for having narcolepsy. It was instead the question of whether or not she qualified as a “minister” in the eyes of the law. The First Amendment’s religion clauses (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”) are traditionally understood to prevent government from getting involved in almost any issue related to church leadership or internal decisions regarding ministerial personnel. The history behind the First Amendment is simply too steeped in state control of or interference with official church leadership back in the proverbial day.

If Perich qualified as a “minister,” then Hosanna-Tabor didn’t have to prove they had just cause for terminating her; they merely had to prove that it wasn’t the court’s business what their reasons were – insubordination, violation of church policy, or simply that Jesus doesn’t like narcoleptics, it was a church matter. Period.

The Sixth Circuit Court which heard the case before it was appealed to the Supreme Court focused on Perich’s actual daily duties. Most of her time and energy seemed to be spent on teaching, with only a small portion of each day devoted to, well… devotion. In this sense, her job was very much like most teachers, including the “lay” teachers not labeled “ministers” by the church. The Supreme Court disagreed with this approach, insisting they must instead defer to the church in matters related to ministry – whatever the math might suggest. Perich had accepted a specific pathway to become “called” and taken on the title of “minister.” She filed as a minister on her taxes and spoke as someone commissioned by the church prior to being fired.

If it looks like a minister, walks like a minister, and talks like a minister…

The Supremes ruled for Hosanna-Tabor and tried to keep its decision narrowly tailored to the specific circumstances before it. Eight short years later, in Our Lady of Guadalupe School v. Morrissey-Berru (2020), the Court would cast such subtleties to the waves and rule that pretty much anyone a religious organization wanted to label a “minister” – even teachers in their private schools who had no other ministerial role or title – could be hired, fired, or otherwise handled at the discretion of the church without recourse to legal protections. The specific fallout from this has yet to be seen.

RELATED POST: Worth A Look: Arizona Christian STO v. Winn (2011)

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

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

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…

Satmar Students

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.

Come On, You Were All Thinking It...

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

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

RELATED POST: The Jehovah’s Witnesses Flag Cases – Part Two

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…

Kiryas Joel Students

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. 

Satmar Male Boxes

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

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

RELATED POST: “Have To” History: Wisconsin v. Yoder (1972)

 

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

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. 

Getting Hasidic With It

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. 

As a practical matter, it certainly solved the problem. Constitutionally, on the other hand…

I Told You The Hats Rocked

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When Jesus Needs A Visitor’s Badge: Church-State Issues In Public Education

A “Hall of Separation”

That’s a horrible title and I wish I could stop thinking it’s not.

As you probably know, given that it’s pretty much all I talk about these days, I’ve been researching Supreme Court cases involving issues of church-state separation in relation to public education. My hope is to have something ready before the entire system collapses and any benefit one may derive from it is no longer relevant.

Map AnalysisGiven the state of the 2020 elections as I post this, I’m probably way too late.

Nevertheless, I’ve been wrong before. Democracy may cough and bleed its way through another generation or so in some form, in which case I may sell as many as eleven copies of this lil’ liber sui generis. A few people may even find it helpful, enlightening – or at least mildly diverting.

Who am I kidding with all the humility? So far, it’s bloody brilliant and everyone will want seven copies just to show off.

In the meantime, I thought I’d share three of the books I’ve been reading as I continue researching my own. While the cases I’m including aren’t exactly obscure or difficult to document (most reached the Supreme Court, after all), the issues involved are often less universal than most “landmark” cases. Plus, as the subject suggests, most involve religion on some level. That means that while my trademark wit and brilliance will no doubt still prove engaging – perhaps even illuminating – it’s nevertheless important I make a genuine effort to incorporate other points of view than my own and a wider array of interpretations and contextualization.

After all, just because someone doesn’t share the same political ideals or personal theology as myself doesn’t mean they don’t deserve consideration and respect as a potential buyer. It all spends the same, kids.

While you eagerly await my own contribution to the field, here are three titles you should seriously consider if you’re even remotely interested in church-state relations as they pertain to public education – or even if you just want to look impressive with your reading choices over the holidays.

Have a Little Faith: Religion, Democracy, and the American Public School (History and Philosophy of Education Series), Benjamin Justice & Colin Macleod (University of Chicago Press, 2016)

The lessons of philosophy and the lessons of history bring us to the same place: resolving religious controversies in public schools must proceed from an informed understanding of the role of public schools as legitimate sites of civic education, where children learn to become reasonable citizens of a religiously pluralistic society.

This rather bold little volume seeks to unravel the history, as well as the social and political dynamics, of public education’s rocky relationship with faith in the United States. While Justice and Macleod are clearly not fans of turning public dollars or control over to narrowly focused factions, neither are they seeking to exclude those voices from the conversation. As they write in the introduction:

{W}e think that public education can serve democracy by helping citizens to reason with one another respectfully and productively, and to understand the complex ways that different faith perspectives (including those that reject religion) inform the lives of citizens.

They structure their case in two ways. First, the book is divided into historical eras – the Founding Fathers as they wrestled with the mix of religion and public education, the 19th century, the “Era of Progress” (roughly the Second Industrial Revolution and the Progressive Era), the 1960s and thereafter, and sample issues from the 21st century. Within this structure, they expertly walk the reader through history, educational practices, religious evolution in the U.S., and the various ways in which these elements intersect, with a focus on what they call “legitimacy.”

Have A Little Faith

A diverse citizenry, they argue, is more likely to support outcomes they believe have both procedural legitimacy (they’re the result of fair procedures and democratic processes, even if not everyone loves the results) and substantive legitimacy (they demonstrate a good faith effort to accommodate the many voices involved in the process, even those in the minority). A religious community might accept that there will be no formal prayer at high school graduation if the process leading to that decision is transparent and the reasoning behind it is consistent with their understanding of how society is supposed to work. The same decision made without clarity as to why or how, or expressed in a way which seems contradictory to their understanding of the system, is more likely to provoke outrage and overt resistance. (I’m oversimplifying, but that’s the general idea.)

In short, then, what Justice and Macleod want is for the debate to be more informed on all sides – resolved by local boards and communities more often than by district courts or D.C. They get there through the best summary I’ve ever read of the history of public education – locally or nationally – as a function of collective needs and individual values. Having taught American History for so many years, I felt like I already had a pretty good grasp on the general educational trends and shifting social dynamics of the past few centuries, but the authors manage to highlight specific movements and interest groups that helped complete some of the connections I’d previously overlooked, as well as numerous other bits and pieces of history and culture. All in all, it’s a fascinating zoom-in on the past two centuries.

Justice and Macleod largely maintain the tone of researchers and advocates for improvement without obviously partisan political agendas, but by default this means readers with specific crusades in mind won’t find much to back them up in these pages. Advocates for public education may find themselves challenged, but most will also find some foundational convictions and ideologies validated along the way – not by mindless recitation of platitudes, but through balanced elucidation of history and founding principles as understood by those who first wrote them down. Even readers interested in “education reform” or convinced we need to reclaim “government schools” from the clutches of atheism and anti-Americanism may find insight and clarity here – minus the sort of “red meat” of which many have grown fond.

All in all, there’s a LOT of history and insight and challenge packed in to a relatively short, easy-to-read text. The authors seem to think we have every reason to be hopeful and that we’re perfectly capable of doing better. I hope they’re right.

Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, Jay Wexler (2009)

Holy HullabaloosThis is not a comprehensive survey of church-state cases which have reached the Supreme Court in the past generation. Instead, Wexler selects a half-dozen cases which illustrate the complications inherent in applying the two religion clauses of the First Amendment to real life. He does a masterful job of reminding us of the very real people and situations behind the decisions, and dispels several common illusions about their goals and beliefs along the way.

Wexler offers valuable insights and analyses with a natural, comfortable humor – making this a very readable, relatable book despite some legitimately thorny topics. While he borders on name-dropping along the way, this can be forgiven since in real life he is apparently actually kind of a big deal. In fact, it’s possible that it’s not name-dropping at all so much as my own personal jealousy at the list of folks whose apartments and workplaces he references as part of this exceptional travelogue.

It’s also really, really funny in all the most accessible and respectful ways. That may be part of my jealousy as well.

School Prayer: The Court, the Congress, and the First Amendment, Robert S. Alley (1994)

The first few chapters of Alley’s book are devoted to the history behind the precise wording of the First Amendment’s two “religion” clauses, with a natural focus on James Madison.

School Prayer R.S. Alley

The rest of the work jumps to the 20th century, especially the latter half (after Engel v. Vitale and Abington v. Schempp in the early 1960s), and a series of Presidential efforts and Congressional machinations to more openly label the U.S. as proudly and historically Protestant – and a fairly orthodox flavor, at that. A handful of relevant Supreme Court cases are addressed, but primarily in terms of legislative reaction and the various discussions and factions involved in trying to find a path around the Court’s interpretations of the Establishment Clause.

It was often closer than one might think.

The book ends in the early 1990s, meaning many of the most important cases from a contemporaneous perspective hadn’t happened yet (Lee v. Weisman is the last case covered in the book; Santa Fe ISD v. Doe wasn’t until 2000). Nevertheless, this book is a surprisingly readable and engaging journey through one of the most foundational debates in American history and culture – what role should faith play in a nation claiming to offer freedom of religion but at the same time so clearly founded in some sort of vaguely Protestant (almost non-sectarian, but not quite) “American Christianity”?

The book is rational and researched, so it naturally leans a bit left. Nevertheless, like the Justice & Macleod book, it offers a fascinating overview of a specific issue in American history over time.

Conclusion

At the moment, the status of our nation, whatever values we’re going to claim moving forward, or the actual role and reliability of our Supreme Court is all up in the air. One of the common themes I’ve discovered among Trump supporters over the past few years is their unshakable faith that nothing the President says or does, Congress says or does, or the Supreme Court says or does, can actually damage the nation in any permanent way because… America! They genuinely believe we are supernaturally invulnerable to any violation of our laws, traditions, values, or institutions, as if there’s a distinct, concrete idea of “America” that doesn’t rely on anyone actually maintaining or believing anything to remain omnipotent and eternal.

I find this conviction completely bewildering.

Because of that, I’ve had trouble knowing whether there’s a point to even finishing the book, given how quickly the precedents and procedures therein are likely to become entirely irrelevant moving forward as we move into an age of Rule by Shut-Up-Snowflake-I’m-Making-$(#&-Up-Over-Here!  I’m pushing ahead, however, largely because I’m not sure how long it will take for the system to actually collapse and because – full transparency – I don’t have any better ideas.

That means that you, my Eleven Faithful Followers, are probably stuck with at least another six months of me talking about this stuff, whether anyone other than me cares or not. Thanks for sticking around.

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