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

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................. ii

STATEMENT OF INTEREST ................ l

SUMMARY OF ARGUMENTS ..............., l

ST 3

I. THE LAW CREATING THE KIRYAS

JOEL VILLAGE SCHOOL DISTRICT

WAS THE PRODUCT OF RELIGIOUS

GERRYMANDERING DESIGNED TO AID

THE SEPARATION TENET OF A RELIGIOUS

ENCLAVE AND WAS NOT "CLOSELY

FITTED" TO SERVE A COMPELLING

GOVERNMENTAL INTEREST. .......... 3

II. THE CREATION OF THE NEW SCHOOL

DISTRICT VIOLATES THE "SECULAR

PURPOSE" PRONG OF THE LEMON TEST. . . 13

If]. |THE TRIAL COURT WAS NOT PREVENTED

FROM FINDING THE STATUTE FACIALLY

UNCONSTITUTIONAL BECAUSE OF THE

FUTURE POSSIBILITY THE

SCHOOL DISTRICT MIGHT INCLUDE

INHABITANTS WHO WERE NOT SATMAR

a 15

IV. THE NEW SCHOOL DISTRICT DOES NOT

REPRESENT PERMISSIBLE

ACCOMMODATION. ................, 19

V. THIS IS NOT AN APPROPRIATE CASE TO

REEXAMINE THE LEMON TEST. ........ 23

CONCLUSION ........:.65 55) ue 28

TABLE OF AUTHORITIES

Aguilar v. Felton, 473 U.S. 402 0 Pee 25

Ashwander v. TVA, 297 U.S. 288 i Fee) 24

Bob Jones Univ. v. United States.

461 U.S. 574 (1983) .................. 11

Bowen v. Kendrick, 487 U.S. 589 (OUGED . ws i wae 16

Brockett v. Spokane Arcades, Inc..

472 U.S. 491 (1985)... .....000000002.. 9

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

113 S. Ct. 2217 (1993) .... 4,5,6,7,24,25,26

Edwards v. Aguillard, 482 U.S. 578 (1987) .. 9,11,12,13

Epperson v. Arkansas, 393 U.S. 97 (ee 11,12

Everson v. Board of Educ., 330 U.S. 1 tS 7]

Gillette v. United States, 401 U.S. 437 (1971) ...... 4

Grand Rapids School Dist. v. Ball.

473 U.S. 373 (1985) ................... 25

Page

Grumet v. New York State Educ. Dept. ,

579 N.Y.S.2d 1004 (Sup. 1992).......... 8,9

Grumet v. Board of Educ., 601 N.Y.S.2d

61 (Ct. App. 1993)......... 3,10,18,22,23,24

Helms v. Cody,

No. 85-5533 (E.D. La. filed Dec. 2, 1985) .. . . 26

Larson v. Valente, 456 U.S. 228 (1982) ...... 3,5,8,24

Lemon v. Kurtzman, 403 U.S. 602 (1971) .... 2,3,11,24

Lee v. Weisman, 112 S. Ct. 2649 (1992) .... 7,20,21,28

Lynch v. Donnelly, 465 U.S. 668 (1984) .......... 27

Lyng v. Northwest Indian Cemetery Protective Ass'n,

I tt tee ec ce es 20

McGowan v. Maryland, 366 U.S. 420 (1961) ....... 23

Meek v. Pittenger, 421 U.S. 349 (1975) .......... 25

Members of the City Council of Los Angeles

v. Taxpayers for Vincent, 466 U.S. 789 (1984) . . 15

Mueller v. Allen, 463 U.S. 388 (1983) ......... 16,18

Norwood v. Harrison, 413 U.S. 455 (1973) .. 10,11,19,21

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) . . 21,22

United States v. Salerno, 481 U.S. 739 (1987) ...... 15

Walker v. San Francisco Unified School Dist. ,

No. 92-15977 (9th Cir. filed May 21, 1992) .. . 26

Wallace v. Jaffree, 472 U.S. 38 (1985) ....... 19,21,28

Walz v. Tax Comm'n of New York City,

DOU Ws GP OIUD 0 6 6 bes dasiecn coor 4

Wisconsin v. Yoder, 406 U.S. 205 (1972) ......... 20

Wolman v. Walter, 433 U.S. 229 (1977) .......... 25

Zobrest v. Catalina Foothills School Dist. ,

oF a ee ee 10,25

Statute:

DRED o's 3 ob os 0 5 0 2 0-6 waa wes 18

Other Authorities:

Choper, The Free Exercise Clause: A Structural Overview and

an Appraisal of Recent Developments, 27 [Special

Issue] Wm. & Mary L. Rev. 943 (1987) ..... 4

iV

2 a ee em

STATEMENT OF INTEREST

Council on Religious Freedom is a national, nonprofit

organization formed to uphold and promote the principles of

religious liberty. Its board of directors, composed of

individuals active in religious affairs, some in an Official

capacity and others on a lay basis, advocate these principles

in state and federal courts throughout the country.

Because of Council on Religious Freedom's focus on

the relationship of the Free Exercise Clause to the

Establishment Clause, it offers to this Court an experienced

and informed voice on the issue sub judice.

SUMMARY OF ARGUMENTS

A statute creating a separate school district for

residents of a religious community is an act of religious

gerrymandering and violates the Establishment Clause.

First, legislation which singles out a _ particular

religious group for special benefit constitutes religious

discrimination and thus requires strict scrutiny. Such a law

must be closely fitted to a compelling state interest. Here, the

legislature granted the Hasidic community of Kiryas Joel its

own public school system. Because other less extreme

measures existed to achieve the state’s goals, the statute, on

its face, violated the Establishment Clause.

Second, a “no set of circumstances" analysis is

inappropriate for laws subject to Establishment Clause

analysis. The speculative possibility that non-Hasidics may

one day inhabit the school district does not prevent a facial

challenge. Where the Establishment Clause provides the basis

for decision, appropriate considerations include: historical

background, specific events leading to enactment, legislative

or administrative history, and contemporaneous statements by

members of the decisionmaking body. This analysis, not the

"no set of circumstances" proffered by petitioners, compels

the conclusion that a school district created to satisfy demands

of a religious community violates the Establishment Clause.

Third, while the statute granting the Hasidic

community its own "public school district" violated each of

Lemon’s three-prong test, special concern exists with the

secular purpose prong. The statute’s legislative history,

administrative interpretation, and the trial court’s findings of

fact confirm the purpose of the law was to religiously

segregate Hasidic children from others in violation of the

neutrality requirement of the Establishment Clause.

Fourth, other amici improperly use this case as a

vehicle to challenge this Court’s seminal decision in Lemon v.

Kurtzman, 403 U.S. 602 (1971). These efforts must be

denied as this is not a traditional Lemon case involving

financial aid to parochial schools. Nor is there need to

address this issue when ample means exist for a decision

based upon the "strict scrutiny" standard. Let such amici,

who seek a review of Lemon and attempt to relitigate issues

long ago addressed and resolved, do so in the setting of a

factual record and not in the context of a non-Lemon case.

For these reasons, Council on Religious Freedom

believes the interests of justice would be served by finding the

State statute unconstitutional as an establishment of religion.

ARGUMENTS

I. THE LAW CREATING

THE KIRYAS JOEL VILLAGE SCHOOL

DISTRICT WAS THE PRODUCT OF

RELIGIOUS GERRYMANDERING DESIGNED

TO AID THE SEPARATION TENET OF A

RELIGIOUS ENCLAVE AND WAS NOT "CLOSELY

FITTED" TO SERVE A COMPELLING

GOVERNMENTAL INTEREST.

Although amicus believes that the creation of the

Kiryas Joel Village School District violates all three prongs of

the test set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971),

this amicus also believes that the appropriate analysis of this

special interest case was set forth by Chief Judge Kaye who

noted that the Court in Larson v. Valente, 456 U.S. 228

(1982), “concluded that the Lemon test is intended ‘to apply

to laws affording a uniform benefit to all religions’ [citation

omitted], but that when a law expresses ‘a denominational

preference, our precedents demand that we treat the law as

suspect and that we apply strict scrutiny in adjudging its

constitutionality.’" Grumet v. Board of Educ. of the Kiryas

Joel Village School Dist., 601 N.Y.S.2d 61, 71 (Ct. App.

1993). Judge Kaye found that the state statute "was

specifically designed to benefit Satmar Hasidim, who refuse

to send their disabled children to integrated Monroe-

Woodbury public schools." Jd. at 70. She further concluded

"{t}hat the law is not part of a neutral, generally applicable

program of State aid but instead was intended to benefit one

religious group." /d. at 70.

Professor Jesse H. Choper concluded that the results in

Larson were correct although contending that the case was a

free exercise instead of an establishment case. He stated that

"[rlegardless of the historical relevance that the establishment

clause may have had with respect to official governmental

designation of a particular religious denomination for special

treatment, the Court admitted in Larson that its modern three-

prong establishment clause test was not really fashioned for

the problem of discrimination or preference among religions. "

Choper, The Free Exercise Clause: A Structural Overview and

an Appraisal of Recent Developments, 27 [Special Issue] Wm.

& Mary L. Rev. 943, 958 (1987).

Professor Choper agreed that "[t}he Court [in Larson]

actually held that discrimination among religions must survive

strict scrutiny. . . . Strict scrutiny, however, also requires the

State to have had no narrower means available, and the Court

felt that the . . . [legislation] was neither necessary nor

‘closely fitted’ to achieving the state goal. Therefore, the

Court held the law invalid." /d. at 958 and 959.

Only one of the three petitioners attempts to refute

Judge Kaye’s Larson “strict scrutiny" analysis. Petitioner

Kiryas Joel Village School District claims that Judge Kaye's

analysis is not supported by Larson v. Valente because the

Statute is not "patently discriminatory." (Petitioner KIVSD

Brf. at 31).

In Church of the Lukumi Babalu Aye, Inc. vy. City of

Hialeah, 113 S. Ct. 2217, 2227 (1993), this Court rejected the

same facial neutrality argument which is advanced here by all

three petitioners. Citing Gillette v. United States, 401 U.S.

437 (1971), the Court stated that "[flacial neutrality is not

determinative. The Free Exercise Clause, like the

Establishment Clause, extends beyond facial discrimination.

The Clause ‘forbids subtle departures from neutrality.’" The

Court, quoting Walz v. Tax Comm'n of New York City, 397

U.S. 664 (1970) (Harlan, J., concurring), stated:

Official action that targets religious conduct for

distinctive treatment cannot be shielded by

mere compliance with the requirement of facial

neutrality. . . . “The Court must survey

meticulously the circumstances of governmental

categories to eliminate, as it were, religious

gerrymanders. "

Id. at 2227.

are, |

This case represents a classic example of religious

gerrymandering. A law is not necessarily constitutional on its

face because of the formal neutrality of the statutory language.

And the creation of a public school district expressly designed

to establish a political means of serving a sectarian interest is

not rendered facially constitutional simply because its

boundaries are described in non-religious terms.

In Lukumi, 113 S. Ct. at 2222, the Court held that the

city ordinance directed at the Santeria religion violated the

Free Exercise Clause because "the principle of general

applicability was violated because the secular end. asserted in

defense of the laws were pursued only with respect to conduct

motivated by religious beliefs." Likewise, here the

Establishment Clause is violated because the principle of

general applicability was violated because the secular ends

asserted in defense of the law to assist the Hasidic community

were pursued only with respect to conduct motivated by

religious beliefs.

Here the legislative act in question does not "afford[]

a uniform benefit to all religions." Larson v. Valente, 456

U.S. at 252 (emphasis in original). No other religious group

in New York State has been provided a religiously segregated

public school district for their children even though other

groups might well wish to have their children separated from

the undesirable influences of "non-believers." To permit the

principle requires its equal application, and the state may not

place itself in the situation of ferreting out whether the

purpose is to avoid psychological harm to the child or

perceived religious harm due to the mixing of believers with

non-believers.

Lukumi gives us guidance in determining whether a law

is in fact neutral. The Court stated in Lukumi:

In determining if the object of a law is

a neutral one under the Free Exercise Clause,

we can also find guidance in our equal

protection cases. As Justice Harlan noted in

the related context of the Establishment Clause,

"[nJeutrality in its application requires an equal

protection mode of analysis." Walz v. Tax

Comm'n of New York City, 397 U.S., at 696,

. . . (concurring opinion). Here, as in equal

protection cases, we may determine the city

council's object from both direct and

circumstantial evidence. Arlington Heights v.

Metropolitan Housing Development Corp. , 429

U.S. 252, 266 (1977). Relevant evidence

includes, among other things, the historical

background of the decision under challenge, the

specific series of events leading to the

enactment or official policy in question, as well

as the legislative or administrative history,

including contemporaneous statements made by

members of the decisionmaking body. /d., at

267-268. These objective factors bear on the

question of discriminatory object. Personnel

Adm 'r of Mass. v. Feeney, 442 U.S. 256, 279,

n.24 (1979).

113 S. Ct. at 2230 and 2231.

Lukumi Babalu Aye, 113 S. Ct. at 2233, further

instructs that "[a] law that targets religious conduct for

distinctive treatment or advances legitimate governmental

interests only against conduct with a religious motivation will

survive strict scrutiny only in rare cases."'

Utilizing an equal protection mode of analysis, one

cannot conclude that this statute was substantively facially

neutral or of general applicability. This is not a case “where

the state has, without singling out religious groups or

individuals, extended benefits to them as members of a broad

class of beneficiaries defined by clearly secular criteria." Lee

'The amicus brief filed by the Rutherford Institute at page

12, note 10, argues that this case is different from Larson v.

Valente, for although the Court there applied an equal

protection mode of analysis, Larson involved a statute which

on its face imposed a disability on a religious sect. While the

present case, they claim, does not involve a facial distinction.

They argue that "when a ‘religious gerrymander’ is alleged as

a result of ‘accommodating’ a religious practice, for state

action to be unconstitutional, there must be an evidentiary

inquiry to determine whether that accommodation intentionally

advances religion [citation omitted] and results invidiously in

‘excluding individuals belonging to any other group from

enjoyment of the relevant opportunity.’" (/d. at 12). They

ignore the fact that in determining whether the statute is

facially neutral under the Establishment Clause, the Court may

consider historical background of the decision under challenge

as well as the specific events leading to the enactment of the

statute and also the legislative or administrative history.

7

v. Weisman, 112 S. Ct. 2649, 2678 n.8 (1992) (Souter, J.,

concurring).

In Larson, Justice White acknowledged that this Court

there had employed "a legal standard wholly different from

that applied in the courts below." Larson, 456 U.S. at 260.

He further noted that there was no finding by the district court

of a deliberate and explicit legislative preference for some

religious denominations over others. He also observed that

"[t}here was no finding of a discriminatory or preferential

legislative purpose." /d. at 260.

Here, however, the trial court specifically found:

There is no doubt that the legislation was an

attempt by the Executive and Legislature to

accommodate the sectarian wishes of the

citizens of Kiryas Joel by taking the

extraordinary measures of creating a

governmental unit to meet their parochial

needs.

Grumet v. New York State Educ. Dept., 579 N.Y.S.2d 1004,

1007 (Sup. 1992). The court also found:

The statute rather than serving a

leguimate governmental end, was enacted to

meet exclusive religious needs and has the

effect of advancing, protecting and fostering the

religious beliefs of the inhabitants of the school

district.

Id. at 1007.

The court further found:

oe ae ee ns

The present site can hardly be described as

neutral. Rather, it lies squarely within the

borders of a religious community, whose

articulated goal is to remain segregated from

the rest of society. Labeling the village as a

"union free public school district" cannot alter

reality.

Id.

The court likewise found:

The Village of Kiryas Joel and the

coterminous school district is an enclave of

segregated individuals who share common

religious beliefs which shape the social,

political and familial mores of their lives from

cradle to grave. . . . In fact, this school

district was created solely and exclusively to

meet religious needs.

Id.

These findings by the trial court require a conclusion

that the law creating the Kiryas Joel School District is

unconstitutional on its face because "[s]ince Everson v. Board

of Educ., 330 U.S. 1 (1947), this Court has adhered to the

principle, clearly manifested in the history and logic of the

Establishment Clause, that no State can ‘pass laws which aid

one religion’ or that ‘prefer one religion over another.’ /d. at

15." Larson, 456 U.S. at 246.

Justice White in his concurrence in Edwards v.

Aguillard, 482 U.S. 578, 609 (1987), quoting Brockett v.

Spokane Arcades, Inc., 472 U.S. 491, 500 (1985), noted that

this Court believed "that district courts and courts of appeal

are better schooled in and more able to interpret the laws of

their respective States." All three courts below have made

findings that the statute was designed for the express purpose

of accommodating the separatist tenets of the Satmar Hasidic

sect.

As Judge Kaye concluded, "this special interest

legislation cannot be equated with the statutory scheme in

Zobrest v. Catalina Foothills School Dist., 113 S. Ct. 2462

[1993] [where] . . . a parochial school student sought a sign

language interpreter as ‘part of a general government program

that distributes benefits neutrally to any child qualifying as

"handicapped" under the IDEA, without regard to the

"sectarian-nonsectarian, or public-nonpublic nature" of the

school the child attends.’" Grumert v. Board of Educ., 601

N.Y.S.2d 61, 72 (Kaye, C.J., concurring). Rather, as Judge

Kaye notes, "[hJere, by contrast, the State engaged in de jure

Segregation for the benefit of one religious group.

Establishment of a public school district intentionally

Segregated along religious lines is a classic example of

government action that must be ‘survey[ed] meticulously.’"

Id. at 72.

This Court in Norwood v. Harrison, 413 U.S. 455

(1973), held that private schools may have a constitutional

right to operate in a discriminatory manner if they so choose,

but the state has a coinciding constitutional obligation not to

provide aid to schools which made such a decision:

In any event, the constitutional infirmity of the

Mississippi textbook program is that it

significantly aids the organization and

continuation of a separate system of private

schools which, under the District Court

10

At ASL, tl Mee APL SB Cs Nl ay le lle all ats i

holding, may discriminate if they so desire. A

State’s constitutional obligation requires it to

steer clear, not only of operating the old dual

system of racially segregated schools, but also

of giving significant aid to institutions that

practice racial or other invidious

discrimination.

Id. at 467.

The Norwood Court cited with approval Justice White's

statement in Lemon v. Kurtzman, 403 U.S. at 671 n.2, "that

in his view, legislation providing assistance to any sectarian

school which restricted entry on racial or religious grounds

would, to that extent, be unconstitutional." Norwood, 413

U.S. at 464 n.7. It would seem axiomatic that if the state is

prohibited from providing secular textbooks to sectarian

schools that discriminate on the basis of religion, the state

may not draw political boundary lines for the express purpose

of restricting entry of non-Hasidic children into a specially-

created public school.

Norwood is based upon the principle "[t}hat the

Constitution may compel toleration of private discrimination

in some circumstances does not mean that it requires state

support for such discrimination." Jd. at 463. Also, see

generally Bob Jones Univ. v. United States, 461 U.S. 574,

603-04 (1983). Here, however, a public school district has

been established for the express purpose of continuing to

segregate Hasidic children from any other children.

As this Court stated in Edwards v. Aguillard, 482 U.S.

578, 585 (1986), citing Epperson v. Arkansas, 393 U.S. 97

(1968), “teaching and learning" must not "be tailored to the

11

principles or prohibitions of any religious sect or dogma. "?

A few illustrations should serve to illustrate the impropriety of

the practice here effectuated by the legislative and executive

branches of the New York State government.

Loma Linda, California, an incorporated city, is an

enclave primarily populated by members of the Seventh-day

Adventist faith, Many Adventists reside at Loma Linda

primarily because that is where Loma Linda University, a

denominationally-owned university, and Loma Linda Medical

Center, an Adventist owned medical facility, are located.

Seventh-day Adventists generally subscribe to a creation

theory. Would it be constitutionally proper for the state to

create a public school district for the children residing within

"In Edwards v. Aguillard, 482 U.S. at 590-91, in

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

Court observed that:

Although the Arkansas anti-evolution law did

not explicitly state its predominant religious

purpose, the Court could not ignore that "[t}he

Statute was a product of the upsurge of

‘fundamentalist’ religious fervor" that has long

viewed this particular scientific theory as

contradicting the literal interpretation of the

Bible. .. . The Court found that there can be

no legitimate state interest in protecting

particular religions from scientific views

"distasteful to them," [citation omitted] and

concluded "that the First Amendment does not

permit the State to require that teaching and

learning must be tailored to the principles or

prohibitions of any religious sect or dogma."

[Citation omitted. }

12

the Loma Linda city limits so as to provide a public education

free from the teaching evolution?

Prior to last year, the Branch Davidians located outside

of Waco, Texas, resided communally at a site known as Mt.

Carmel. Would it have been appropriate for the State of

Texas to create a special school district for the Branch

Davidian children in order to prevent them from mixing with

other public school children?

There are fundamentalist Christians who have elected

to remove their children from public school because of the use

of certain books and other educational materials with

"humanistic content." A majority of like-minded parents

could, under petitioners’ theory, seek to establish a school

district designed to protect their children from what they

perceive to be anti-religious influences.

Il. THE CREATION OF THE NEW SCHOOL

DISTRICT VIOLATES THE "SECULAR

PURPOSE" PRONG OF THE LEMON TEST.

As this Court stated in Edwards, 482 U.S. at 585,

"Lemon's first prong focuses on the purpose that animated

adoption of the Act." This Court held that "[a] court’s finding

of improper purpose behind a statute is appropriately

determined by the statute on its face, its legislative history, or

its interpretation by a responsible administrative agency.

[Citations omitted.] The plain meaning of the statute's words,

enlightened by their context and the contemporaneous

legislative history, can control the determination of legislative

purpose." (Emphasis supplied.)

The legislative history of Chapter 748 has been set

forth in respondents’ brief. Of particular importance,

13

however, is the July 19, 1989, recommendation of disapproval

issued by the State Department of Education (1 R 99-102).

Among the reasons for disapproval, the Department stated:

Census data obtained from the Orange

County Department of Planning establishes that

every inhabitant of Kiryas Joel is white. As

the decision of the Court of Appeals described

above confirms, all of its inhabitants are

members of one religious sect, the Satmarer

Hasidim. In addition, the superintendent of

schools of the Monroe-Woodbury Central

School District, the district in which Kiryas

Joel is currently included, reports that only one

student who lives in Kiryas Joel is enrolled in

the public schools. All of the remaining school

age children living in the village attend private

religious schools located within the confines of

the village. It should be noted that

geographically, the Village of Kiryas Joel is

well within the boundaries of the Monroe-

Woodbury Central School District.

(1 R 100-101).

The Department's recommendation of disapproval

further states:

Given the nature of the dispute that

apparently prompted this legislation, this bill

also raises serious constitutional questions

regarding potential governmental furtherance of

religion in violation of the First Amendment's

provision requiring the separation of Church

and State. Although representatives of the

14

village assert that they will take extraordinary

care to create a special education school devoid

of any religious message or teaching, the State

would be accommodating the religious beliefs

of a particular religious sect by enacting

legislation that furthers its decision to insulate

the children of the village from the larger

society.

(1 R 101).

Chapter 748 on its face violates the secular purpose test

of Lemon. Even the New York State Department of

Education -- the responsible administrative agency -- agrees.

The department's recommendation of disapproval

acknowledges the state would be furthering the church’s desire

to insulate the children from the larger society. Thus, the

purpose of the statute violates the “secular purpose” test of

Lemon.

Ill. THE TRIAL COURT WAS NOT PREVENTED

FROM FINDING THE STATUTE FACIALLY

UNCONSTITUTIONAL BECAUSE OF THE

FUTURE POSSIBILITY THE SCHOOL

DISTRICT MIGHT INCLUDE INHABITANTS WHO

WERE NOT SATMAR HASIDIC JEWS.

Petitioner Kiryas Joel Village School District, although

acknowledging that the school district is now composed

exclusively of Satmar Hasidic Jews, argued that this does not

mean that the arrangement is facially unconstitutional.

Petitioners speculate that in the future the school district may

include inhabitants who are not Hasidic. It argues that under

this Court’s holding in United States v. Salerno, 481 U.S.

739, 745 (1987), and Members of the City Council of Los

15

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 797-98

(1984), respondents’ facial challenge to Chapter 748 requires

the Court to determine "that the statute could never be applied

in a valid manner." (Petitioner KJVSD Brf. at 19-20).

Petitioner thus attempts to escape from the finding of

the New York Court of Appeals that the new school district

being coterminous with the Satmar Hasidic Community would

have only Hasidic children attending the public schools of the

new school district and only members of the Hasidic sect

would likely serve on the school board. (/d. at 20). That

petitioner argues that “[a]lthough the Village of Kiryas Joel is

a community which is inhabited at present solely by adherents

to one faith, no one is excluded from the village on the

grounds of race or religion." (/d.). Petitioner concludes from

this that the conditions existent when the school district was

established and the historical background and specific events

leading to the statute's enactment are irrelevant to the question

of the facial validity of the statute under the Establishment

Clause. (/d.).

To support its defense of the statute, petitioner cites

Mueller v. Allen, 463 U.S. 388, 401 (1983), wherein this

Court stated: "We would be loath to adopt a rule grounding

the constitutionality of a facially neutral law on annual reports

reciting the extent to which various classes of private citizens

claimed benefits under the law."

Petitioners’ "no set of circumstances" argument does

not apply to Establishment Clause claims. In Bowen v.

Kendrick, 487 U.S. 589, 627 n.1 (1988), Justice Blackmun,

although disagreeing with the majority on the primary issue

before the Court, further discussed the inapplicability of the

“no set of circumstances" requirement in Establishment Clause

cases:

16

A related point on which I do agree

with the majority is worth acknowledging

explicitly. In his appeal to this Court,

Secretary of Health and Human Services

vigorously criticized the District Court's

analysis of the AFLA on its face, asserting that

it “cannot be squared with this Court’s

explanation in United States v. Salerno, (481

U.S. 739, 745 (1987),] that in mounting a

facial challenge to a legislative Act, ‘the

challenger must establish that no set of

circumstances exists under which the Act would

be valid.’" [Citation omitted.] The Court,

however, rejects the application of such rigid

analysis in Establishment Clause cases,

explaining: "As in previous cases involving

facial challenges on Establishment Clause

grounds, . . . we assess the constitutionality of

an enactment by reference to the three factors

first articulated in Lemon v. Kurtzman, 403

U.S. 602 (1971)." [Citation omitted.] Indeed,

the Secretary’s proposed test is wholly

incongruous with analysis of an Establishment

Clause challenge under Lemon, which requires

our examination of the purpose of the

legislative enactment, as well as its primary

effect or potential for fostering excessive

entanglement. Although I may differ with the

majority in the application of the Lemon

analysis to the AFLA, I join it in rejecting the

Secretary’s approach which would render

review under the Establishment Clause a

nullity. Even in a statute like the AFLA, with

its solicitude for, and specific averment to, the

participation of religious organizations, one

17

could hypothesize some "set of circumstances

. . under which the Act would be valid,” as,

for example, might be the case if no religious

organization ever actually applied for or

participated under an AFLA grant. The

Establishment Clause cannot be eviscerated by

such artifice.

Reference to Mueller v. Allen is inappropriate here.

Mueller was a statute that included a broad class of

beneficiaries including parents of both public and private

school children. The instant legislation, however, was

designed to benefit only a single Hasidic community.’ As

indicated in the brief of petitioner KJVSD at pages 3-4, a 320-

acre religious enclave incorporated as the Village of Kiryas

Joel began its incorporation process in September of 1976 --

almost 17 years ago -- and still “virtually all residents of the

village are Satmarer Hasidic Jews." This is hardly a case

where statistics as to the number of Hasidic Jews residing in

the village will appreciably change in the foreseeable future.

That petitioner also ignores the fact that, unlike Bowen,

it is the creation of a school district intentionally designed to

exclude all but children of Hasidic Jews, not the allocation or

utilization of tax-derived funds that constitutes the

constitutional offense. Whether the new school district's

subsequent operations cross the permissible boundary between

*As Chief Judge Kaye pointed out "this case . . . differs

from previous Establishment Clause education cases" because

it "is not one of the myriad ‘government programs that

neutrally provide benefits to a broad class of citizens defined

without reference to religion.’" (Citation omitted.) Grumet v.

Board of Educ., 601 N.Y.S.2d 61, 70 (Ct. App. 1993) (Kaye,

C.J., concurring).

18

the secular and the religious is not the only constitutional

concern. The constitutional boundary was violated the instant

the state created a school district for the distinct purpose of

exclusively serving students residing within a religious

enclave. The continuing operation of a religiously segregated

school district is a continuing constitutional violation. To

paraphrase this Court in Wallace v. Jaffree, 472 U.S. 38, 59

(1985), "[t}he legislative intent to . . . [exclusively serve a

religious enclave] is, of course, quite different from merely

protecting every .. . [handicapped child’s right to a free

appropriate public education as provided in 20 U.S.C. §

1412(1)]."

This case does not involve a law by which the Hasidic

religious Community's religious tenet of separateness was

incidentally benefitted.* Here the only reason for the line-

drawing and the creation of the school district was to accede

to the demands of a religious community to keep its children

separate from those who are religiously different from them.

The organs of civil government may not be constitutionally

utilized for such a purpose.

IV. THE NEW SCHOOL DISTRICT DOES NOT

REPRESENT PERMISSIBLE ACCOMMODATION.

The brief filed by petitioner Attorney General for the

*In Norwoed v. Harrison, 413 U.S. at 464 4.7, this Court

stated that [t]he leeway for indirect aid to sectarian schools

has no place in defining the permissible scope of state aid to

private racially discriminatory schools." This Court also held

in Norwood that "the Constitution does not permit the State to

aid discrimination even when there is no precise casual

relationship between state financial aid to a private school and

the continued well-being of that school."

19

State of New York at page 25 argues that "this Court has a

long history of recognizing the acceptability in some cases for

the government to make allowaaces for concerns that are

religious in nature." Petitioner KJVSD at pages 40-43 argues

that the creation of the schoci district was a valid

accommodation of religion. It cites as an example Wisconsin

v. Yoder, 406 U.S. 205 (1972), where this Court upheld the

right of the Amish religious sect to be exempt from certain

compulsory school attendance laws. In Lyng v. Northwest

Indian Cemetery Protective Ass'n, 485 U.S. 439, 456-57

(1988), in discussing Yoder, this Court said that "[t]he statute

at issue in that case prohibited the Amish parents, on pain of

criminal prosecution, from providing their children with the

kind of education required by the Amish religion. [Citation

omitted.] The statute directly compelled the Amish to send

their children to public high schools, ‘contrary to the Amish

religion and way of life.’" (Citation omitted.)

In Yoder the Amish merely sought to be exempt. The

situation here is entirely different. Here also no statute or

governmental action prevented Hasidic children from receiving

special education services. Rather, it was the independent

private choice of the parents to withhold the attendance of

their children in a public school setting unless and until public

authorities provided a site that would segregate their children

from other non-Hasidic children.

In his concurring opinion in Lee v. Weisman, 112 S.

Ct. at 2677, Justice Souter stated:

Whatever else may define the scope of

accommodation permissible under _ the

Establishment Clause, one requirement is clear:

accommodation must lift a discernible burden

on the free exercise of religion. [Citations

20

a aa

omitted.] Concern for the position of religious

individuals in the modern regulatory state

cannot justify official solicitude for a religious

practice unburdened by general rules; such

gratuitous largesse would effectively favor

religion over disbelief.

Here neither government nor a private third party has imposed

any burden upon the free exercise of the religious sect

inhabiting Kiryas Joel.

Justice O’Connor in Jaffree has‘helpfully suggested that

an accommodation of the free exercise of religion is

permissible "when it lifts a government imposed burden on the

free exercise of religion." 472 U.S. at 83 (O’Connor, J.,

concurring). As this Court noted in Lee v. Weisman, 112 S.

Ct. 2649, 2655 (1992), "[t]he principle that government may

accommodate the free exercise of religion does not supersede

the fundamental limitations imposed by the Establishment

Clause." Further, as pointed out by Justice O’Connor in

Wallace v. Jaffree, 472 U.S. at 84 (O'Connor, J.,

concurring), the state has no authority "to remove burdens

imposed by the Constitution itself." In Norwood v. Harrison,

413 U.S. at 466, this Court indicated that providing secular

textbooks to students attending racially segregated schools may

well have been motivated by a sincere interest in the

educational welfare of all of the state’s children but "good

intentions as to one valid objective do not serve to negate the

State’s involvement in violation of a constitutional duty."

More recently, Justice Blackmun in Texas Monthly,

Inc. v. Bullock, 489 U.S. 1, 27 (1989) (Blackmun, J.,

concurring in the judgment), in discussing accommodation in

the form of a special tax exemption for religious books,

indicated that he found it somewhat difficult to reconcile the

21

Free Exercise and Establishment Clauses values. According

to Justice Blackmun, "(t]he Free Exercise Clause suggests that

a special exemption for religious books is required." While

"(t]he Establishment Clause suggests that a special exemption

for religious books is forbidden," he opined that an

accommodation in the form of an exemption from a state-

imposed tax on religious literature would be appropriate if the

State statute would "exempt the sale not only of religious

literature distributed by a religious organization but also of

philosophical literature’ distributed by nonreligious

organizations devoted to such matters of conscience as life and

death, good and evil, being and nonbeing, right and wrong."

Id. at 27-28. According to Justice Blackmun, a "narrowly

tailored" law would meet the compelling interest that underlies

both the Free Exercise and Establishment Clauses. /d. at 28.

This same reasoning is found in Judge Kaye’s opinion

in the instant case. She stated:

The law’s overbreadth, however, goes

beyond symbolism. The impasse between

Monroe-Woodbury and the Satmarer concerned

only special education services for disabled

children. Nevertheless, the Legislature

responded by creating a new public school

district vested with all the powers of a union

free school district, which are vast. Thus, for

example, there is no legal impediment to the

new district's operation of a public school

program for nondisabled children if it chose to

do so. Manifestly, the delegation of such

power to the new district demonstrates that the

legislation exceeded the problem _ that

engendered it.

22

Grumet v. Board of Educ., 601 N.Y.S.2d at 72-73.

Judge Kaye, in further resonating Justice Blackmun’s

analysis in Lee v. Weisman, stated:

Even if some _ sort of _ separate

e* wational services were the only viable

alternative, that could have been achieved

without carving out a new school district. The

Legislature could have, for example, enacted a

law providing that the Monroe-Woodbury

School District should furnish special education

services to these children at sites not physically

or educationally associated with their parochial

schools. That would have satisfied the parents,

and would supersede any residual claim by the

District that New York statutory law precludes

that action.

Id. at 73.

As Justice Frankfurter stated in McGowan vy.

Maryland, 366 U.S. 420, 466-67 (1961) (Frankfurter, J.,

concurring), "if a statute furthers both secular and religious

ends by means unnecessary to the effectuation of the secular

ends alone -- where the same secular ends could equally be

attained by means which do not have consequences for

promotion of religion -- the statute cannot stand."

V. THIS IS NOT AN APPROPRIATE CASE TO

REEXAMINE THE LEMON TEST.

Petitioner Kiryas Joel Village School District and

petitioner Monroe-Woodbury Central School District suggest

that the Lemon test should be revisited if such action is

23

necessary to sustain the constitutionality of the statute.

Petitioner Attorney General of the State of New York,

however, does not request a review of Lemon but argues that

the application of the Lemon test should result in a finding that

the statute in question is constitutional.

Several amici, however, have seized this opportunity

to call for a reexamination of Lemon and have fashioned

various suggested Establishment Clause tests. This unique

case, however, is not the appropriate vehicle to reappraise the

three-prong Lemon test even if this Court believes that at the

appropriate time such a reexamination is warranted.

Judge Kaye’s concurring opinion below concluded that

the Lemon test was not "the preferred analytical framework

for this case," Grumet, 601 N.Y.S.2d at 69, because

"legislation that singles out a particular religious group for

special benefits or burdens should be evaluated under a strict

scrutiny test, requiring that the law be closely fitted to a

compelling State interest." Her analysis echoed this Court

similar conclusion in Larson v. Valente, 456 U.S. 228 (1982),

in which this Court stated that "when we are presented with

a state law granting a denominational preference, our

precedents demand that we treat the law as suspect and that

we apply strict scrutiny in adjudging its constitutionality.” Jd.

at 246.

The Court concluded that "the Lemon v. Kurtzman

‘tests’ are intended to apply to all laws affording a uniform

benefit to all religions, and not to provisions like . . .

[legislation] that discriminate among religions." Jd. at 252.

As Justice Souter noted in Lukumi, 113 S. Ct. at 2247

(Souter, J., concurring) (quoting from Ashwander v. TVA, 297

U.S. 288, 347 (1936) (Brandeis, J., concurring)), "the Court’s

better practice, once supported by the same principles of

24

eens

restraint that underlie the rule of stare decisis, is not to

"formulate

required by

a rule of constitutional law broader than is

the precise facts to which it is to be applied.’"

Amicus United States Catholic Conference suggests

that this Court overturn its 1985 decisions in Aguilar v.

Felton, 473

U.S. 402 (1985), and Grand Rapids School Dist.

v. Ball, 473 U.S. 373 (1985). Both of these cases concluded

that it was unconstitutional for public school teachers to

provide teaching services on the premises of pervasively

sectarian elementary and secondary schools. Of course, both

Aguilar and Grand Rapids were premised on this Court's

holding in

Wolman v.

Meek v. Pittenger, 421 U.S. 349 (1975), and

Walter, 433 U.S. 229 (1977). As recently as last

term, this Court in Zobrest v. Catalina Foothills School Dist. ,

113 S. Ct. 2462 (1993), took pains to distinguish the facts in

Zobrest from those in Meek and Grand Rapids. Zobrest, 113

S. Ct. at 2468. This Court found that "the programs in Meek

and Ball -- through direct grants of government aid -- relieved

sectarian schools of costs they otherwise would have borne in

educating their students." /d. at 2468. In discussing the

Grand Rapids decision, this Court said:

The programs challenged there, which provided

teachers in addition to instructional equipment

and

material, “in effect subsidize{d] the

religious functions of the parochial schools by

taking over a substantial portion of their

responsibility for teaching secular subjects."

[Citation omitted.] "This kind of direct aid,"

we determined, "is indistinguishable from the

provision of a direct cash subsidy to the

religious school." [Citation omitted. ]

Id. at 2468.

25

The precise factual issues before this Court, of course,

are substantially different from those previously decided in

Felton and Ball. As Justice Souter recently indicated in

Lukumi, 113 S. Ct. at 2247, the Court should refrain from

announcing any radical departure from settled law unless it

has been subject to "full dress argument." "Sound judicial

decisionmaking requires ‘both a vigorous prosecution and a

vigorous defense’ of the issues in dispute."

Amicus U.S. Catholic Conference acknowledges that

there are cases now in litigation which squarely focus upon the

Meek, Wolman, Felton, and Ball iine of decisions by this

Court, such as: Walker v. San Francisco Unified School

Dist., No. 92-15977 (9th Cir. filed May 21, 1992), awaiting

decision by the Ninth Circuit; and Helms v. Cody, No. 85-

5533 (E.D. La. filed December 2, 1985), awaiting decision in

the district court. This Court should await any

‘The U.S. Catholic Conference mistakenly contends that

Helms v. Cody is awaiting decision on cross-motions for

summary judgment. To the contrary, there was a six-week

trial on the merits with live testimony by numerous witnesses

on behalf of both the plaintiffs and defendants with hundreds

of pages of documentary evidence presented in the case. In

the on-premises special education program, which was one of

the programs under attack in Helms, the public school district

entered into contracts with ten selected parochial schools

assigning full-time special education teachers to teach the full

range of secular subjects in self-contained classrooms.

Several of the special education teachers providing on-

premises instruction in these parochial schools were previously

employed by the parochial school as regular classroom

teachers. The students are enrolled as tuition-paying students

in the parochial school receiving practically all classroom

instruction other than religious instruction from the tax-

26

ee a

reconsideration of Meek, Wolman, Felton, or Ball until such

time as a case specifically raising the on-premises instruction

issue has been presented to the Court and fully briefed by the

parties.

Council on Religious Freedom in its amicus brief filed

with this Court in Lee v. Weisman argued that this Court

should not abandon decades of judicial precedent and replace

it with a new restrictive and untried test to apply to asserted

violations of the non-establishment provisions of the First

Amendment (Brf. of Amicus Curiae Council on Religious

Freedom before this Court in Lee v. Weisman at 28-30).

Attached as "Appendix A" to Council on Religious Freedom's

amicus brief in Weisman was a comprehensive listing of

hundreds of federal and state court decisions applying the

Lemon test in Establishment Clause cases. Also included in

"Appendix B" was a list of cases applying Justice O'Connor's

helpful endorsement analysis. Council on Religious Freedom

pointed out that revisiting all of the issues addressed in the

cases decided under Lemon would add a tremendous burden to

an already overburdened judicial system.

Justice O'Connor in Lynch v. Donnelly, 465 U.S. 668,

688-94 (1984), suggested a modification of the Lemon test to

include an endorsement analysis which she articulated as

follows:

The purpose prong of the Lemon test

asks whether government's actual purpose is to

endorse or disapprove of religion. The effect

prong asks whether, irrespective of

govermynent’s actual purpose, the practice under

review in fact conveys a message of

supported public school teachers.

27

endorsement or disapproval. An affirmative

answer to either question should render the

challenged practice invalid.

Id. at 690.

In Wallace v. Jaffree, 472 U.S. at 69, Justice

O’Connor explained that "[t]he endorsement test is useful

because of the analytic content it gives to the Lemon-mandated

inquiry into legislative purpose and effect." The endorsement

analysis found its way into the maiority opinion in Wallace,

472 U.S. at 56, wherein the Court stated that "[i]n applying

the purpose test, it is appropriate to ask ‘whether

government's actual purpose is to endorse or disapprove of

religion. *"

Justice Souter joined by Justice Stevens and Justice

O’Connor in a concurring opinion in Lee v. Weisman

specifically rejected the view pressed by numerous amici

supporting petitioners that the Establishment Clause should be

essentially restricted to a “coercion” analysis. Lee v.

Weisman, 112 S. Ct. at 2671. They concluded that "we could

not adopt that reading without abandoning our settled law, a

course that . . . the text of the Clause would not readily

permit. Nor does the extratextual evidence of original

meaning stand so unequivocally at odds with the textual

premise inherent in existing precedent that we should

fundamentally reconsider our course." /d. at 2671. Certainly

there is nothing in this case that requires such a

reconsideration.

CONCLUSION

For the above-stated reasons, the judgment of the

Court of Appeals of the State of New York should be

28

affirmed.

Dated: February 23, 1994

Respectfully submitted,

LEE BOOTHBY

Counsel of Record

Boothby & Yingst

4545 42nd St., NW, Suite 201

Washington, DC 20016

(202) 363-1773

Counsel for Amicus Curiae

Of Counsel:

Walter E. Carson

917 Daleview Drive

Silver Spring, MD 20901

Harold J. Lance

Rt. 3, Box 350

Dunlap, TN 37327

Robert W. Nixon

12501 Old Columbia Pike

Silver Spring, MD 20904

Rolland Truman

4522 Greenmeadow Road

Long Beach, CA 90808

29