Amicus Curiae Brief — Board of Education of Monroe-Woodbury Central School District v. Grumet

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Nos. 93-517, 93-527, 93-53 RE CEIV< J |

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YAS JOEL VILLAGE SCHOOL DISTRICT,

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CE OF THE eLERK

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op preme Court of the Unita Sistes i. os

u OCTOBER TERM, 1993

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— 2 BOARD OF EDUCATION OF THE JAN 21 1994

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LOUIS GRUMET and ALBERT W. HAWK,

Respondents.

ON WRIT OF CERTIORARI TO THE NEW YORK COURT OF APPEALS

BRIEF FOR THE NATIONAL JEWISH COMMISSION

ON LAW AND PUBLIC AFFAIRS (“COLPA”’),

AS AMICUS CURIAE, IN SUPPORT OF PETITIONERS

DENNIS RAPPS JULIUS BERMAN

COLPA Counsel of Record

135 W. 50 Street KAYE, SCHOLER, FIERMAN,

New York, NY 10020 HAYS & HANDLER

425 Park Avenue

New York, NY 10022

(212) 836-8000

(Of Counsel)

NATHAN J. DIAMENT

DEBEVOISE & PLIMPTON

875 Third Avenue

New York, NY 10022

Attorneys for Amicus Curiae

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TABLE OF CONTENTS

PY IE “on oo wv cons awe ¥ecsces ii

INTRODUCTION AND INTEREST OF AMICUS

EES ae ea oer 2

SUMMARY OF ARGUMENT ................. 5

PU TS TURES TT Tee er eee 7

1. LEMON AND THE "PRIMARY

EFFECT” TEST SHOULD BE

OVERRULED AND REPLACED

WITH A STANDARD THAT

PERMITS GOVERNMENTAL

PROVISION OF SECULAR NEEDS

OF RELIGIOUS CITIZENS AND

GI eG cee ese ues sce. 7

Il. A STATUTE CREATING A PUBLIC

SCHOOL DISTRICT IN ORDER TO

EDUCATE DISABLED CHILDREN,

WITH BOUNDARIES THAT ARE

COTERMINOUS WITH A

LAWFULLY INCORPORATED

MUNICIPALITY WHOSE

RESIDENTS SHARE A COMMON

RELIGIOUS FAITH, IS NOT

UNCONSTITUTIONAL ON THE

GROUND THAT SUCH STATUTE

HAS THE "PRIMARY EFFECT" OF

ADVANCING RELIGION WITHIN

THE MEANING OF LEMON yy.

KURTZMAN, 403 U.S. 602 (1971). ... 20

PT Shed bets bw kes cebaodenaes 27

TABLE OF AUTHORITIES

CASES

Abington v. Schempp, 374 U.S. 203 (1963) ....... 12, 13

Aguilar v. Felton, 473 U.S. 402 (1985) ......... 13, 23

Allegheny County v. Greater Pitt. A.C.L.U..,

668 US. ST3 (IRD kn 0 0 tee ee 11, 16

Board of Ed. v. Allen, 392 U.S. 236 (1967) ......... 13

Bowen v. Kendrick, 487 U.S. 589 (1988) ............ 3

Cmte. for Public Education v. Nyquist,

413 U.S. TER (IVD sc acsavenaeee 3, 12, 13, 17

Corp. of Presiding Bishop of the Church

of Jesus Christ of Latter-Day Saints

v. Amos, 483 U.S. 327 (1987) .......... 3, 11, 22

Edwards v. Aguillard, 482 U.S. 578 (1982) ......... 13

Employment Division v. Smith, 110 S. Ct.

ht 6, 15, 25

Engel v. Vitale, 370 U.S. 421 (1961) .........045. 13

Epperson v. Arkansas, 393 U.S. 97 (1968) .......... 13

Everson v. Board of Ed., 330 U.S. 1 (1946) ......... 13

Grand Rapids v. Ball, 473 U.S. 373 (1985) .... 13, 23, 27

Hunt v. McNair, 413 U.S. 734 (1972) ... 2.2.00... 13

Illinois ex rel. McCollum v. Board of

Education, 333 U.S. 203 (1947) ............. 13

Lamb’s Chapel v. Center Moriches U.F.S.D.,

CD . cc ececcacescccce 11, 13

Lee v, Weisman, 112 S. Ct. 2649 (1992) .... 3, 13, 17, 26

Lemon v. Kurtyman, 403 U.S. 602 (1971)... ..... passim

Levitt v. Cte. for Public Education, 413

EE eee 13

Louis Grumet et. al. v. Board of Ed.

of the Kiryas Joel School Dist.

EE « we ccc ccc ccccces 2, 23, 24

Lynch v. Donnelly, 465 U.S. 668 (1984) .... 6, 17, 22, 24

Meek v. Pittenger, 412 U.S. 349 (1972)... 2.2... .. 13

Moose Lodge v. Irvis, 407 U.S. 163 (1972)... ....... 19

Mueller v. Allen, 463 U.S. 388 (1983) ........... 3, 22

New York v. Cathedral Academy, 434 U.S. 125

EE 13

Roberts v. U.S. Jaycees, 468 U.S. 609 (1983) ........ 19

Roemer v. Board of Public Works,

GPa CE Gnd c Neb esac ca deeaks 13

Stone v. Graham, 449 U.S. 39 (1980) ............. 13

TWA v. Hardison, 432 U.S. 63 (1977) ..... 2.2. ...... 3

Tilton v. Richardson, 403 U.S. 672 (1970) .......... 13

Wallace v. Jaffree, 472 U.S. 38

ree eer ar 13, 17, 24

Walz v. Tax Commission of the City of

New York, 397 U.S. 664 (1970) ........... 2, 26

Widmar v. Vincent, 454 U.S. 263 (1981) ......... 3, 14

Wisconsin v. Yoder, 406 U.S. 205 (1972) .... 2.2.0... 3

Witters v. Washington Department of Svcs.,

et te ne eee 13

Wolman v. Walter, 433 U.S. 229

Zablocki v. Redhail, 434 U.S. 374 (1978)... . 2.2... 19

Zobrest v, Catalina Foothills School District,

113 S. Ct. 2462 (1993) as eee 3, 13

Zorach v. Clauson, 343 U.S. 306 (1952) ........... 14

iV

LEGISLATIVE MATERIALS

Ps SE Ol ee cco de ccweeuckee eeu. 15

Approval Message of the Governor,

1989 N.Y. Legis. Ann. at325 .............. 21

Chapter 748 of the Laws of 1989 ............. Passim

OTHER AUTHORITIES

A. Adams and C. Emmerich, A Nation Dedicated

to Religious Liberty (1990) .................. 9

Akhil Amar, The Bill of Rights as a

Constitution, 100 Yale L.J. 1159 (1991) ....... 8,9

S. Carter, The Culture of Disbelief.

es coheed ORE De eUEe heh ckccece 10, 12, 19

Eliott M. Berman, Endorsing the Supreme

Court’s Decision to Endorse Endorsement.

24 Colum. J.L. & Soc. Probs. 1 (1991) ........ 14

Harold Berman, The Religion Clauses of the

First Amendment in Historical Perspective,

in Religion and Politics, (W. Lawson Taitte,

LES 0s ou uc che we cole do « @:e.0 6 o aca 8

J. Madison, Memorial and Remonstrance

Against Religious Assessments (1785) ........... 7

Michael McConnell, Accommodation of Religion,

MPU, oc vtecsecseccsceccces 15

Michael McConnell, Coercion: The Lost

Element of Establishment, 27 Wm. & Mary L.

ae eo eee eke beéwaehncs *

Phillip Kurland, The Origins of the Religion

Clauses of the Constitution, 27 Wm. & Mary

eT "oo bees cee eu cee c’ ées'ee% 8

The Federalist, (Lodge ed. 1908) ................ 19

Thomas R. McCoy & Gary A. Kurtz, A Unifying

Theory for the Religion Clauses of the

First Amendment, 39 Vand. L. Rev. 249

Tocqueville, Democracy in America, 292

I 19

vi

i ee ee ee a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

BOARD OF EDUCATION OF THE

KIRYAS JOEL VILLAGE

SCHOOL DISTRICT, et. ai.

Petitioners,

LOUIS GRUMET and ALBERT W. HAWK

Respondents.

ON WRIT OF CERTIORARI TO THE

NEW YORK COURT OF APPEALS

BRIEF FOR THE NATIONAL JEWISH COMMISSION

ON LAW AND PUBLIC AFFAIRS ("COLPA”), AS

AMICUS CURIAE, IN SUPPORT OF PETITIONERS

INTRODUCTION AND INTEREST OF AMICUS CURIAE

This case raises the question of whether almost

200 severely disabled children are to be deprived of special

education authorized by a duly elected public school district

board and provided in a public school by public school teachers

employing standard curricula solely because the area

encompassed by the school district is populated by citizens who

share a common religious faith. A majority of the court below

held that because the school district was coterminous with an

area populated by members of one religious group, the law

establishing the district created the kind of “symbolic union of

church and state” prohibited by the “primary effect" prong of

the Lemon v. Kurtuman, 403 U.S. 602 (1971), test. Louis

Grumet et. al. v. Board of Ed. of the Kiryas Joel Village School

Dist., 81 N.Y¥.2d 518. The court made no factual finding that

the students at the school were exposed to any religious

indoctrination.

Amici believe that this case presents a clear

example of the infirmities of the Lemon test and offers the

Court an opportunity to refashion its approach to Establishment

Clause jurisprudence. As this case makes clear, Lemon is

inadequate to the task of helpfully guiding the relationship

between religion and state in our nation.

The National Jewish Commission on Law and

Public Affairs ("COLPA") is a non-profit association of

volunteer attorneys and social scientists who donate their

services for public advocacy on behalf of the Orthodox Jewish

community. COLPA has filed briefs on the merits in most of

the important religious liberty cases considered by the Court

over the past twenty years. See, e.g., Walz v. Tax Comm'n of

2

the City of New York, 397 U.S. 664 (1970); Lemon vy.

Kurtzman, 403 U.S. 602 (1971); Wisconsin v. Yoder, 406 U.S.

205 (1972); Cmte. for Public Educ. v. Nyquist, 413 U.S. 756

(1973); TWA v. Hardison, 432 U.S. 63 (1977); Widmar v.

Vincent, 454 U.S. 263 (1981); Mueller v. Allen, 463 U.S. 388

(1983); Corp. of Presiding Bishop of the Church of Jesus Christ

of Latter-Day Saints v. Amos, 483 U.S. 327 (1987); Bowen v.

Kendrick, 487 U.S. 589 (1988); Lee v, Weisman, 112 S.Ct.

2649 (1992); Zobrest v, Catalina Foothills School Dist., 113

S.Ct. 2462 (1993).

This brief is joined by national organizations of

Orthodox Jewish rabbis and scholars, as well as synagogues and

social service organizations which represent a broad spectrum

of the Orthodox Jewish community in the United States. One

of the joining groups is the Union of Orthodox Jewish

Congregations of America ("Orthodox Union"), a coordinating

body for approximately 1,000 Jewish congregations in the

United States.

The other groups joining in this brief are:

Amit Women; the largest women’s zionist

organization in the United States. Their 80,000 strong

membership sponsors a network of education and welfare

projects across the country.

Agudath Harabonim of the United States and

Canada; the oldest Orthodox rabbinical organization in the

United States, whose membership includes leading scholars and

sages. It is intimately involved with educational, social, and

legal issues significant to the Jewish community.

Emunah of America; a religious zionist

organization comprised of 40,000 members who sponsor

education and welfare projects for the needy.

National Council of Young Israel; a

coordinating body for more than—300_Orthodox synagogue

branches in the United States and Israel. It is involved in

matters of social and legal significance to the Orthodox Jewish

community.

Rabbinical Alliance of America; An Orthodox

Jewish rabbinical organization with more than 400 members

that has, for many years, been actively involved in a variety of

religious, social, and educational areas affecting Orthodox

Jews.

Rabbinical Council of America; The largest

Orthodox Jewish rabbinical organization in the world with a

membership in excess 1,000. It is deeply involved in issues

related to religious freedom.

Torah Umesorah; The National Society for

Hebrew Day Schools is the coordinating body for more than

600 Jewish Day Schools across the United States.

We are supporting the petitioners in this case

because we believe that the Court of Appeals’ use of the

Establishment Clause to strike down the provision of secular

benefits in a secular manner to a community because its

members share a common religious faith is an undermining of

religious liberty and is at odds with the language, history,

policies, and sound judicial understanding of the First

Amendment of our Constitution.

4

NR BAB eee

SUMMARY OF ARGUMENT

1. The Court should use this case as the means

for overruling the unhelpful and much criticized three prong

test elaborated in Lemon v. Kurtzman, 403 U.S. 602 (1971).

The Lemon test has proven to be ambiguous and unhelpful to

lower courts and legislatures in their attempts to negotiate the

relationship between the state and religion. Furthermore,

Lemon's test does not serve the primary goal of the

Constitution’s religion clauses; the promotion of religious

liberty. Rather, Lemon has turned the First Amendment on its

head and made it a tool for the protection of the secular state.

Such an approach does not conform with the goals the Framers

sought in crafting the religion clauses, nor does it conform to

the political history of our nation. Moreover, it does not serve

the contemporary pluralistic society in which we live. Most of

the members of the Court have thoroughly criticized Lemon in

past decisions and several members have offered alternative

approaches to dealing with church and state issues. We suggest

that the Court adopt an approach that takes into account both

religion clauses of the First Amendment and reads them as a

coherent whole. Such an approach would view the Free

Exercise Clause as a mandate for government accommodation

of religious citizens when their practice would be otherwise

burdened by the state. The Establishment Clause would be

understood to set the limits on optional accommodation

programs enacted by the state. In a case such as the one before

the Court, the provision of a secular benefit to the religious

community of Kiryas Joel would be viewed as a legitimate

optional accommodation of religion, even if it were to somehow

have failed the Lemon test, since it could not be perceived as

endorsement of the Satmar faith by New York State. Such

5

application of the unified approach would properly serve the

goal of the First Amendment; the promotion of religious

liberty.

2. Should the Court retain the three prong

Lemon test, Chapter 748 should still not be found an improper

establishment of religion in violation of the First Amendment.

Lemon v. Kurtunan, 403 U.S. 602 (1971), requires that for a

Statute to pass muster under the Establishment Clause it must

have a secular purpose, must not have the primary effect of

advancing or inhibiting religion, and must not excessively

entangle government and religion. Chapter 748 meets each of

these requirements. The creation of the Kiryas Joel School

District was in order to provide the secular need of secular

special education for handicapped children. Chapter 748 does

not have the primary effect of advancing religion; it does not,

as the New York Court of Appeals suggested, serve to endorse

the Satmar Hasidic faith by accommodating that community

with the provision of education for their children. Lastly, there

is no entanglement of religion and state in the implementation

of the Kiryas Joel School District. The school is a public

school offering secular education and part of the education

system of New York State. It is not designed in any way to

offer religious instruction and, therefore, does not require

government monitoring of any sort. In finding Chapter 748 a

violation of the Establishment Clause for the sole reason that

the members of the Kiryas Joel community share a common

religious faith is to impermissibly make their religious faith the

basis of their standing in our political community. See, Lynch

v. Donnelly, 465 U.S. 668, 687 (1984)(O’Connor, J.,

concurring); Employment Div. v. Smith, 110 S.Ct. 1595, 1599

(1990).

rr. or

A ANNE Ie CON, Ni EE a te a yw a

"The Establishment Clause [and similar State

Provisions] are broad charters of liberty, which embody in

fundamental law the most basic assumptions of the secular

democratic order."' These are the words of the proponents of

Respondents and their amici argue for a Secular

democratic order, one in which any trace of religion or

religious rhetoric is declared unacceptable, even, politically

incorrect. This is Clearly not reflective of our nation’s

constitutional life from its inception by our Founders to modern

times. At the birth of Our republic James Madison wrote his

Memorial and Remonstrance. In this work he argued

vigorously for the Principle of religious liberty, but in doing so

he sought to Protect the church from the State, not vice versa,

and in doing so he offered religious arguments. He wrote: "If

this freedom [to observe religion or not] be abused, it is an

offence against God, not against man." J. Madison, Memorial

and Remonstrance Against Religious Assessments (1785). The

abolitionist movement was grounded in religious moral

principles and rhetoric. Similarly, we can remember our

nation’s civil rights movement; led by clergy and invoking

religious morality at every turn. A secular democratic order

and its attendant attitude advocated by Respondents would have

us spurn this nation’s greatest accomplishments in its effort to

secure liberty and equality for all its citizens.

Over the past decade scholars have convincingly

demonstrated that the assumption that our constitutional

Founders sought to create a totally secular society bereft of any

and all influence by religious citizens and virtually hostile to the

needs of those citizens to be simply incorrect. See, e.g.,

Akhil Amar, The Bill of Rights as a Constitution, 100 Yale L.J.

1159 (1991); Harold Berman, The Religion Clauses of the First

Amendment in Historical Perspective, in Religion and Politics,

(W. Lawson Taitte, ed., 1989); Phillip Kurland, The Origins of

the Religion Clauses of the Constitution, 27 Wm. & Mary

L.Rev. 839 (1986); Michael McConnell, Coercion: The Lost

Element of Establishment, 27 Wm. & Mary L. Rev. 933

(1986).

An examination of the Founders’ statements at

the time reveals that the First Amendment prohibitions were

directed at Congress, not the states, and proscribed making any

law “respecting an establishment of religion." The term

"respecting," taken in its historical context, clearly suggests the

purpose of the clause was to prevent the Congress from

interfering with the state establishments of religion. Indeed,

scholars have argued that the principal purpose of the

Pe Be ee +

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Establishment Clause was to protect state religious

establishments from federal government disestablishment. See,

Amar, supra; A. Adams and C. Emmerich, A Nation Dedicated

to Religious Liberty (1990), at 46.

Of course, the political and legal character of

our nation has changed since the founding era. The Bill of

Rights, including the religion clauses, properly apply to the

States. The society of our Founders was religiously and

culturally homogeneous compared to contemporary America.

The American people have come to embrace the concept of

religious pluralism in a way our forefathers could not have

imagined. Furthermore, it can be fairly argued that attitudes

have changed within our religious communities. Members of

religious communities in contemporary America are not robots

commanded by their clerics and serving as their tools in the

political discourse. Catholics who consider themselves devout

members of their order, yet differ with their church on the

issue of abortion are but one famous illustration of this

phenomenon. Combining the principles of our Founders with

the realities of our society can, then, yield a useful middle

ground. While we should not return to the notion that states

may establish religion, we ought to read the Establishment

Clause to permit "government support of theistic and deistic

belief [communities] more nearly comparable to the government

support which is permitted to be given to agnostic and atheist

[communities]." Berman, supra, at 72. As applied to the case

now before the Court, such an understanding would easily

allow the disabled children of Kiryas Joel to have their school

and not be penalized for their religious faith.

Recently, Professor Stephen Carter of Yale Law

School laid out a comprehensive and compelling analysis of the

9

religion clauses, their history and interpretation, and their role

in our societal life to date in The Culture of Disbelief. S.

Carter, The Culture of Disbelief (1993). His argument, and the

argument with which we identify, is that "the principal task of

the separation of church and state is to secure religious liberty,"

and that the "transformation of the Establishment Clause from a

guardian of religious liberty into a guarantor of public

secularism raises prospects at once dismal and dreadful."

Culture of Disbelief, at 107 and 122.

Lemon has turned the Establishment Clause on

its head. Consider its elements: "First, the statute must have a

secular legislative purpose; second, its principal or primary

effect must be one that neither advances nor inhibits religion;

finally, the statute must not foster ‘an excessive entanglement

with religion.’" Lemon, at 612. Thus conceived, the clause

exists more for the benefit of secular politics than religious

liberty; it attempts to erect a wall of separation to protect the

political order and its institutions. Countless illustrations have

been offered to demonstrate that Lemon is unhelpful in

resolving Establishment questions. “Did legislation enacted at

the behest of the religiously motivated civil rights movement

have a secular purpose? If granting tax relief to parents whose

children attend parochial schools advances religion by making

the schools cheaper, does refusing to grant them inhibit religion

by making them more expensive? If competing factions within

the same church both seek to control of the same church

building, does judicial resolution represent an excessive

entanglement?" Culture of Disbelief, at 110. Each of these

questions and more demonstrate that Lemon has come to be

more of a hindrance than a help to our courts and our citizens

in negotiating the relationship between governments and

churches.

10

But there is more. The quiet statements of the

scholarly critiques of the Court’s Establishment Clause

jurisprudence are mere whispers in comparison to the numerous

and varied proclamations against Lemon and its progeny made

by virtually each member of the Court at one time or another.

As noted by Justice Scalia last term: "Over the years, no fewer

than five of the [then] sitting Justices have, in their own

opinions [criticized Lemon] and a sixth has joined in doing so."

See, Lamb’s Chapel v. Center Moriches U.F.S.D., 113 S.Ct.

2141, 2150 (1993). To recall but a few specific examples: In

1985 Justice O'Connor noted “difficulties inherent in the

Court’s use of the test articulated in Lemon...” Corp. of

Presiding Bishop v. Amos, supra at 346; and in 1989 Justice

Kennedy recognized that “[sJubstantial revision of our

Establishment Clause doctrine may be in order.” Allegheny

County v. Greater Pitt. A.C.L.U., 492 U.S. 573, 656 (1989).

Lemon has not served, as some might have hoped, to provide

clarity for lower courts and citizens, rather, it and its confused

and conflicting progeny have made a muddle of, perhaps, the

most important clauses of the Bill of Rights.

We have no doubt that the initial construction of

the present jurisprudence was undertaken with the best of

intentions, and its builders believed that both church and state

would be best served if the state managed to maintain an active

neutrality toward religion. However, as has been pointed out

by Professor Carter, the neutrality approach does not effectively

serve the goals of the religion clauses:

The ideal of neutrality (toward religion]

might provide useful protection for religious

freedom in a society of relatively few laws, one

in which most of the social order is privately

determined. That was the society the Founders

knew. In such a society, it is enough to say

that the law leaves religion alone. It is

difficult, however, to see how the law can

protect religious freedom in the welfare state if

it does not offer exemptions and special

protection for religious devotion. ..carving out a

special place for religion is the minimum it

might be said that [the religion clauses

do]...Neutrality treats religious belief as a

matter of individual choice, an aspect of

conscience, with which the government must

not interfere but which it has no obligation to

respect...indeed, it can be trampled by the state

as long as it is trampled by accident. Culture

of Disbelief, at 133.’

In effect, the neutrality approach has fostered a

disrespect for religious faith in our nation’s public discourse, if

not an overt hostility. This very case before the Court for

review demonstrates the absurd distortion of the Establishment

Clause’s purpose. The Kiryas Joel school provides the secular

needs of citizens of the State of New York; secular education

for disabled children. As initially noted by this Court, Onite.

for Public Educ. v. Nyquist, 413 U.S. 756, 772 (1972),

previous cases before the Court involving the relationship

between religion and education fall into two categories: public

2. See also, Abington v. Schempp, 374 US. 203, 306

(1963)(Goldberg, J., concurring)warning of “untutored devotion to

the concept of neutrality” yielding an unconstitutional hostility

toward religion).

12

aid to parochial schools or students,’ and religious activities

within public schools.‘ In Kiryas Joel a public school has been

3. Zobrest v. Catalina Foothills, 113 S.Ct. 2462 (1993)(sign language

interpreter for parochial school student); Aguilar v. Felton, 473

US. 402 (1985)public school instructors teaching on parochial

school premises), Witters v. Washington Dept. of Svcs., 474 U.S.

481 (1985)(aid to blind student at sectarian college); Grand Rapids

v. Ball, 473 U.S. 373 (1985)similar); New York v. Cathedral

Academy, 434 U.S. 125 (1977)(reimbursement for record keeping

and testing); Wolman v. Walter, 433 U.S. 229 (1977)(textbooks,

transportation); Roemer v. Bd. of Public Works, 426 U.S. 736

(1975 (grants to private colleges); Meek v. Pittenger, 412 U.S. 349

(1972)(textbooks, materials, and other on-site services), Cmte. for

Public Educ. v Nyquist, 413 U.S. 756 (1972)(funds for repair and

maintenance, tuition reimbursement and tax benefits for parents),

| Levitt v. Cmte. for Public Educ., 413 U.S. 472(1972)(funds for

testing), Hunt v. McNair, 413 U.S. 734 (1972)revenue bonds for

sectarian universities); Tilton v. Richardson, 403 US. 672

(1970\construction grants); Lemon v. Kurtzman, 403 U.S. 602

(1971 (teacher salaries, books, materials); Early v. DiCenso, 403

U.S 602 (1970)(salary supplements); Bd. of Ed. v. Allen, 392 US.

236 (1967\(textbooks); Everson v. Bd. of Ed. 330 US. |

(1946)(bus transportation).

4. Lee v. Weissman, 112 S.Ct. 2649 (1992\prayer at graduation);

Edwards v. Aguillard, 482 U.S. 578 (1982)(statute mandating

teaching of creation science); Wallace v. Jaffree, 472 US. 38

(1985)\'moment of silence); Stone v. Graham, 449 US. 39

(1980)\(posting of Ten Commandments); Abington Sch. Dist. v.

Schempp, 374 U.S. 203 (1963)(prayer in school); Engel v. Vitale,

370 U.S. 421 (1961)(prayer); Epperson v. Arkansas, 393 U.S. 97

(1968)(barring teaching of evolution); Mlinois ex rel. McCollum v.

Bd. of Educ., 333 U.S. 203 (1947)religious teaching by sectarian

teachers); see also, Lamb's Chapel v. Center Moriches U.F.S.D..

113 S.Ct. 2141 (1993\use of school premises by religious group),

13

created to provide nothing but secular instruction to students

and it has been found to be a violation of the Establishment

Clause by virtue of the fact that all its students share a common

religious faith. The creation of the school does not further a

religious principle of the Satmar-Jewish faith in any way, all

that remains as the basis of the opponents’ objections is the

religious identity of the Kiryas Joel community and their

children. Carried to its logical conclusion, finding this school

district to be an establishment of religion would require finding

any other governmental structure present in a religiously

homogenous community to be similarly invalid under the First

Amendment.

The Lemon test's yielding this result is,

perhaps, the best argument that can be offered for why the test,

especially the ambiguous “primary effect" aspect of it, should

be permanently discarded.

The seeds of a more workable approach have

already been planted in the Court's jurisprudence and should

now be cultivated independently from Lemon's strangling roots.

The concept of allowing for the accommodation of religion

while proscribing state endorsement of religion can serve as a

workable and useful approach in the application of the religion

clauses. See, Eliott M. Berman, Endorsing the Supreme

Court's Decision to Endorse Endorsement, 24 Colum. J.L. &

Soc. Probs. 1 (1991). Such an approach would borrow concepts

already present in the Court’s opinions but, with a clear

renunciation of Lemon, be modified and expanded into a more

Widmar v. Vincent, 454 U.S. 263 (1981)(same), Zorach v. Clauson,

343 U.S. 306 (1952)\time release program).

14

——— eo *

coherent theory. Furthermore, an “accommodation/no-

endorsement" approach would allow the Court to finally do

what the text of the Constitution clearly intended; to read both

the Free Exercise Clause and the Establishment Clause as

coherent whole. See, generally, Michael McConnell,

Accommodation of Religion, 1985 Sup. Ct. Rev., 1; Thomas R.

McCoy & Gary A. Kurtz, A Unifying Theory for the Religion

Clauses of the First Amendment, 39 Vand. L. Rev. 249 (1986).

A unified theory of the religion clauses would

begin with the Free Exercise Clause. It would set the initial

parameters of the state's relationship to religious citizens and

communities. It would demand “positive accommodation” of

the religious in our society. If the state were to pass a neutral

law of general applicability that resulted in a burden on a

religious practice the state would be required to demonstrate a

compelling interest in not accommodating those citizens whose

religious faith is burdened by the statute.*

Complementary to the Free Exercise aspect of

the approach would be a no-endorsement demand resulting from

the Establishment Clause. This clause would be properly

understood to govern situations where the state has opted to

benefit a religious community or citizens when it was otherwise

not required to. A state may be assumed to be seeking to

accomplish a legitimate purpose when it seeks to allocate its

resources to its constituent communities. The issue, therefore,

under the Establishment Clause would be whether the state was

5. Although the compelling interest test was rejected in Employment

Div. v. Smith, supra, it has been reintroduced by legislation passed

by Congress and signed by the President in the Religious Freedom

Restoration Act, P.L. 103-141 (1993).

15

improperly endorsing religion. If the state attempted to

inappropriately endorse one religion, or religion as opposed to

non-religion, this would be correctly viewed as violative of the

Constitution; it would be a “negative accommodation." It is

crucial, however, that religious constituencies must be as

entitled to benefits from the modern state as much as any other

constituency. To suggest otherwise is to turn the Establishment

Clause into a device that disables the devout citizen rather than

uphold his or her liberty. In a case such as this, the Court

could properly conclude that New York seeks to fvirill its

secular aim of educating handicapped children in secular studies

and is doing so in a manner which is beneficial to a religious

community, while not endorsing that community's beliefs.

Essentially, the unified theory suggests that the

Free Exercise Clause sets the minimum deference the state must

give to its religious members by means of positively

accommodating their religious callings when a conflict may

arise. The Establishment Clause sets the outer boundaries of

permissible, optional undertakings by the state to aid religious

communities. An accommodation which came to be viewed as

endorsement would be branded a negative accommodation and

be rejected.°

6. This aspect of the approach could be taken a step further and allow

for greater latitude for state aid to- religion if, instead of

endorsement, coercion of non-believers or other-believers is the

prohibited state activity. We do not advocate that approach at this

time, although it too has been offered by members of this Court.

See Allegheny County, supra, (Kennedy, J., concurring in part and

dissenting in part).

16

ate

Sa a ne Comey, — a le he. A eae PE a tt” i ee

This unified approach, which we have

described, extends and elaborates the groundwork laid by

members of the Court in their previous discussions of

accommodation and endorsement.

el

Members of this Court have already noted that

allowing for accommodation of religion does not signify

governmental endorsement of religion. Lee v. Weisman, 112

S.Ct. 2649, 2676 (1992) (Souter, J., concurring). In fact, this

Court has stated that “‘[iJt has never been thought either

possible or desirable to enforce a regime of total separation...’”

(citing Nyquist, at 760)..."[njor does the Constitution require

complete separation of church and state; it affirmatively

mandates accommodation, not merely tolerance, of al! religions,

and forbids hostility toward any." Lynch v. Doniielly, 405 U.S.

668, 673 (1984). If, in fact, there is a mandate for

accommodation, not merely permission for it, the Court should

conform the whole of its religion clause doctrine to allowance

of such activities by the state. In Wallace v. Jaffree, 472 U.S.

38, 67 (1985), Justice O'Connor approvingly recognized

accommodation as a means of negotiating the relationship

between the two religion clauses.

The question that remains to be answered under

the unified approach is how courts and elected officials might

seek to determine when an optional accommodation by the state

has become an impermissible endorsement. At the core of the

consideration would be the realization that our nation seeks to

have a public sphere which is religiously pluralistic, not

secular. Furthermore, we would add the elements elaborated

by Justice O'Connor in Wallace, supra, at 76, 83. The first

element is whether an “objective observer familiar with the

text, legislative history, and implementation of the statute would

17

perceive it as state endorsement..." Additionally, “in

determining whether a statute conveys a message of

endorsement...courts should assume that the ‘objective

observer’ is acquainted with the Free Exercise Clause and the

values it promotes."

In addition to these elements, a proper analysis

would seek to pre-empt any government activity that would

coerce or induce a particular set of beliefs or practices, or force

participation in religious observance in a direct manner. In a

case such as this one, the creation of a public school district for

a Satmar Hasidic community, other citizens would not be

reasonably induced to become Satmar Hasids to obtain some

similar benefit. Additionally, in a case such as this there would

be no message of endorsement yielding an incentive to religious

faith because the state is providing the Satmar community with

a benefit the broader community already receives, public

education.

The rationale for seeking the adoption of the

accommodation/no-endorsement reading of the religion clauses

and the consequent treatment of religious citizens as full

members of the political order flows from the proper historical

understanding of religion in our nation’s political life.

Professor Carter has pointed out that, unlike the neutrality

approach:

Accommodation can be crafted into a

tool that accepts religion as a group rather than

an individual activity. When accommodation is

so understood, corporate worship...becomes the

[object] around which the state must make the

widest possible berth. Accommodation is

18

OD hi Me hile Die Mw -

therefore closer to...the Founders’ conception

of religious groups as autonomous moral and

political forces. ..vital to preventing majoritarian

tyranny. Culture of Disbelief, at 134.

This approach to religious citizens and their

communities allows for the greatest protection of religious

liberty and for the benefits that secure religious communities

can offer the broader society by acting as important "mediating"

institutions in our national life. The Court has recognized the

protected status of a variety of such institutions; family,

Zablocki v. Redhail, 434 U.S. 374, 383 (1978), civic

associations, Roberts v. U.S. Jaycees, 468 U.S. 609 (1983),

and social clubs, Moose Lodge v. Irvis, 407 U.S. 163, 179

(1972), are but a few examples. Historically, and in modern

times, however, no such institutions are more important to the

process of developing and transmitting general concepts of our

nation’s civic moral life than our churches. It is in this sense

that Tocqueville viewed religion as “the first of [America’s]

political institutions." Tocqueville, Democracy in America, 292

(Anchor ed. 1969). It is in this sense, as well, that James

Madison sought to foster “the multiplicity of sects" to secure

religious and civil liberty in our nation. The Federalist, No. 51,

at 326 (Lodge ed. 1908)

19

Il, A STATUTE CREATING A PUBLIC

SCHOOL DISTRICT IN ORDER TO EDUCATE

DISABLED CHILDREN, WITH BOUNDARIES THAT

ARE COTEKMINOUS WITH A LAWFULLY

INCORPORATED MUNICIPALITY WHOSE RESIDENTS

SHARE A COMMON RELIGIOUS FAITH, IS NOT

UNCONSTITUTIONAL ON THE GROUND THAT SUCH

STATUTE HAS THE "PRIMARY EFFECT" OF

ADVANCING RELIGION WITHIN THE MEANING OF

LEMON vy. KURTZMAN, 403 U.S. 602 (1971).

Chapter 748 of the Laws of 1989 is

constitutional even if the Court retains and applies the three part

Lemon test. This case concerns the state provision of secular

services, public special education for the handicapped, to a

group of its citizens. It is not the form of assistance the

Establishment Clause is designed to reach, nor is it the form of

assistance that has been previously examined by the Court. By

enacting Chapter 748, New York State created a public school

district encompassing the Incorporated Village of Kiryas Joel, a

community whose members share a common religious faith.

The school of that district is a secular school offering only

secular instruction for handicapped children. The Legislature

and Executive of New York determined that the children of

Kiryas Joel were not receiving the education they were entitled

to when they attempted to attend a larger school district, it

therefore gave them their own so that the State’s goal of

properly educating all its children might properly be

accomplished. Such an effort to accomplish a secular goal

through secular means cannot be understood as a breach of the

Establishment Clause, even as understood by Lemon v.

Kurtzman and its progeny.

20

ee ee ee

The Court’s opinion in Lemon v. Kurtzman

offers a three part test for Establishment Clause case analysis:

"First, the statute must have a secular legislative purpose;

second, its principal or primary effect must be one that neither

advances nor inhibits religion..-finally, the statute must not

foster an excessive government entanglement with religion."

Lemon, at 612. The creation of the Kiryas Joel school district

by Chapter 748 meets each requirement of this three part test.

The Court will note that the Court of Appeals invalidated

Chapter 748 on the basis of the second prong, the “primary

effect" prong, alone. We will, therefore, only briefly describe

the validity of the statute under the first and third prongs as

well, concentrating our discussion on the second prong.

A. THE LAW’S PURPOSE IS SECULAR

Chapter 748 has a clear, unmistakable, and

legitimate secular purpose; ensuring that handicapped children

living in the town of Kiryas Joel, New York receive appropriate

public secular education to which they are statutorily entitled.

The New York Legislature and the Governor clearly sought to

fulfill this purpose, to the exclusion of any other. Governor

Cuomo’s Approval Message stated specifically that “this bill is

a good faith effort to solve this unique problem [of the Kiryas

Joel children failing to receive their proper education].”

Approval Message of the Governor, 1989 N.Y. Legis. Ann. at

325. In the past, the Court has found state efforts to fund

educational services valid under Lemon's first prong. The

Court has recognized a “legitimate interest...in providing a

fertile educational environment for all schoolchildren of the

State." Wolman v. Walter, 433 U.S. 229, 236 (1977). In fact,

“governmental assistance programs have consistently survived

this inquiry even when they have run afoul of other aspect of

21

i

the Lemon framework." Mueller v. Allen, 463 U.S. 388, 394

(1983). In Corp. of Presiding Bishop, 483 U.S. 327, 335

(1987), this Court explained the aim of Lemon's first prong:

The "’purpose’ requirement aims at preventing the relevant

governmental decisionmaker...from...acting with the intent of

promoting a particular point of view in religious matters." In

no way can New York's effort to provide effective secular

education for the disabled children of Kiryas Joel be viewed as

the State promoting a particular view in religious matters.

Furthermore, even if the Court were to ignore

these precedents and believe that a religious purpose is

somehow served by creating the school district this Court

should view it as a legitimate accommodation of religious

practice. "[GJovernment acts with [a] proper purpose” when it

undertakes to lift a governmental burden on the free exercise of

religion. Corp. of Presiding Bishop v. Amos, supra, 338.

"(The Constitution] affirmatively mandates accommodation” of

religion. Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

Therefore, a statute designed to lift a burden on free exercise

cannot violate Lemon's “secular purpose” test.

B. THE LAW DOES NOT ENTANGLE

CHURCH AND STATE

The third prong of Lemon seeks to prevent

"excessive government entanglement with religion." No

structure has been put into place that would foster governmental

entanglement in the religious life of the Satmar community.

The school at issue in this case, again, is a public school

teaching nothing but secular studies and, therefore, is part of

the regular educational apparatus of the State of New York.

There is no need for any special monitoring mechanisms and

22

one — 7

te et RS adele oe

none have been created. There is no need since, unlike

previous cases before the Court, this is not a case of public

school programs in sectarian schools nor religious and public

teachers working together in a public school. See, e.g. Aguilar

v. Felton, 473 U.S. 402 (1985). This case unquestionably falls

into the category described by the Court in Wolman, supra, at

248: “It can hardly be said that the supervision of public

employees performing public functions on public property

creates an excessive entanglement between church and state."

C. THE PRIMARY EFFECT OF THE LAW IS SECULAR

The decision of the New York Court of Appeals

centered on its finding that Chapter 748 violated the second

prong, the "primary effect" prong, of the Lemon test. Grumet

v. Kiryas Joel, supra, 81 N.Y.2d, at 527. Simply stated, the

majority of the Court of Appeals erred in concluding that the

primary effect of the statute is to create a symbolic union

between New York State and the Satmar Hasidim. The

opposite is true; the primary effect of creating the Kiryas Joel

school district is to provide handicapped children with an

appropriate secular education.

In analyzing whether the school district

constituted an improper establishment of religion, the Court of

Appeals relied on this Court’s statement in Grand Rapids

School Dist. v. Ball, 473 U.S. 373, 390 (1985), that the

concern of the primary effects test is "whether the symbolic

union of church and state effected by the challenged

governmental action is sufficiently likely to be perceived by

adherents of the controlling denomination as an endorsement,

and by non adherents as a disapproval, of their individual

choices." Grumet, supra, at 528. As argued below by

23

petitioners, this reading of Grand Rapids is incorrect. Justice

O’Connor, the original proponent of the perception-of-

endorsement approach, has stated: "The relevant issue is

whether an objective observer, acquainted with the text,

legislative history, and implementation of the statute, would

perceive it as endorsement." Wallace v. Jaffree, 472 U.S. 38,

76 (1985). In this case an objective observer viewing any one

of these elements would properly and reasonably conclude that

New York was not endorsing the Satmar faith. The text of

Chapter 748 makes no reference whatsoever to religion. The

Governor’s Approval Message specifically stated the position

that the school district would be administered in a totally

secular manner. The implementation; the actual operation of

the school district has been nothing but secular since its

opening. All of these facts undercut the analysis of the Court

of Appeals.

Additionally, the Court should note that the

reasoning employed by the New York Court in its finding an

improper establishment runs afoul of this Court’s statements on

this issue in other cases. The Court below found a "symbolic

union of church and state” in the act that only Hasidic children

will attend the public schools in the newly established school

district, and only members of the Hasidic sect will likely serve

on the school board." Grumet, at 529. This is an almost

frightening piece of reasoning. The fact that the residents of

Kiryas Joel share a common religious faith results in finding

secular government action for that community an establishment

of religion. Followed to its logical conclusion, this reasoning

would no doubt invalidate institutions across our country in the

thousands of localities where only Protestants reside, or only

Catholics reside, or only Episcopalians reside. More

importantly, in her concurring opinion in Lynch, supra, at 687,

24

Justice O'Connor correctly stated that the “Establishment

Clause prohibits government from making adherence to a

religion relevant in amy way to a person's standing in the

political community." The Court of Appeals in determining

precisely that the adherence of the residents of Kiryas Joel to

the Satmar faith, and nothing else invalidates the school, is

itself making the faith of the persons relevant to their standing

in the political community and finding that as a result of that

faith they are not entitled, as any other members of the political

community, to the full range of their benefits of citizenship. A

court cannot, consistent with the Free Exercise Clause, impose

| such a disability on the Kiryas Joel community on the basis of

their religious views or status. See, Employment Div. v. Smith,

110 S.Ct. 1595, 1599 (1990).

Central to this case’s analysis should be the fact

that there is no religious tenet of the Satmar faith being served

by the creation of the separate school district. Satmar Hasidim

are a sect of Jews. Separatism is not a religious precept of

Judaism or the Satmar sub-faith. Maintaining a separate

community is viewed by Satmar Hasidim as a more conducive

method for fostering and maintaining religious belief and

practice, nothing more. The essential motivation for seeking a

school for the handicapped for their children alone is neither to

further core religious tenets or the peripheral aid of a separate

environment, it is the desire for secular education for the

handicapped children; education that was not benefitting the

children when they were exposed to the additional “handicaps”

of confronting a different language, lifestyle, and mode of dress

in the broader Monroe-Woodbury school.

Beyond the fact that the creation of the Kiryas

Joel district is not an endorsement of religion and thereby not

25

violative of the “primary effect" test, it may be the very type

of accommodation of religion demanded by the Court’s reading

of the Free Exercise Clause. Just as “[ijn freeing the Native

American Church from federal laws forbidding peyote use...the

government conveys no endorsement of peyote rituals, the

Church, or religion as such," Lee v. Weisman, 112 S.Ct. 2649,

2677 (1992) (Souter, J., concurring), New York's creation of

the Kiryas Joel school district ought to be understood, at most,

as properly accommodating the religious needs of the Satmar

residents. The loss of publicly funded special education

qualifies as a burden deserving the state’s accommodation

especially since that accommodation is minimal. The public

school in Kiryas Joel is perfectly willing to accept any child

within its jurisdiction, not only Satmar children, and its

activities are nothing but secular.

Furthermore, an accommodation need not be

compelled by the Free Exercise Clause for it to pass

constitutional muster under the Establishment Clause. Walz v.

Tax Comm'n, 397 U.S. 664, 673 (1970). The citizens of

Kiryas Joel, therefore, need not demonstrate that they are

entitled to a separate school district for Chapter 748 to be found

a constitutional accommodation.

Lastly, the Kiryas Joel case is appropriately

governed by the Court's decision in Wolman v. Walter, supra,

a case decided utilizing the Lemon analysis. In Wolman the

Court stated that “providing therapeutic and remedial services at

a neutral site off the premises of the nonpublic schools will not

have the impermissible effect of advancing religion." Wolman

at 248. No constitutional violation was found in the “fact that a

unit on a neutral site may...serve only sectarian pupils." /d., at

247. Chapter 748 creates a neutral site at which sectarian

26

a

pupils receive appropriate secular therapeutic services. The

Kiryas Joel pubic school is just that, a public school. It,

therefore, should be found a valid means of providing for the

secular needs of Kiryas Joel's children since it does not have

the primary effect of advancing religion.

CONCLUSION

In Grand Rapids, supra, at 431, Justice

O'Connor wrote in dissent that “[flor these children, the

Court’s decision is tragic. The Court deprives them of a

program that offers a meaningful chance at success in life...” It

would be similarly tragic for the children of Kiryas Joel to be

deprived of their best chance at success in life by the

invalidation of Chapter 748. It would be an even greater

tragedy, however, because it would send the unequivocal

message to all citizens of our nation that possess a religious

faith that they are not as entitled to government support of their

secular needs as their non-religious neighbors.

ee Sadie sittin ow

27

For the foregoing reasons, the judgement of the

Court of Appeals should be reversed with instructions to enter

judgement for the defendants.

Respectfully submitted,

JULIUS BERMAN,

(Counsel of Record)

KAYE, SCHOLER,

FIERMAN, HAYS &

HANDLER

425 PARK AVENUE

NEW YORK, NY 10022

(212)836-8000

DENNIS RAPPS, COLPA;

NATHAN J. DIAMENT,

DEBEVOISE & PLIMPTON

(Of Counsel)

i is . ie Ne ee ee ee eee ee! OP 8 eS a, eee ee