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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1107

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0462%3A20. Public record. Not legal advice.