Appendix — Pataki v. Grumet

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APPENDIX A

THIS DECISION IS UNCORRECTED AND SUBJECT TO

REVISION BEFORE PUBLICATION IN THE

NEW YORK REPORTS.

Louis GRUMET et al., Respondents,

v.

George PATAKI, as Governor of the State of New York,

et al., Appellants.

Court of Appeals of New York.

May 11, 1999.

Peter H. Schiff, for State appellants.

Nathan Lewin, for appellant BOE Kiryas Joel.

Lawrence W. Reich, for appellant BOE Monroe- Woodbury.

Jay Worona, for respondents.

The Becket Fund for Religious Liberty; and American Jewish

Congress, amici curiae.

SMITH, J.:

At issue on this appeal is whether Chapter 390 of the Laws

of 1997, which enables Kiryas Joel to create a separate schoo]

district for its disabled children, violates the Establishment

Clause of the First Amendment of the United States

Constitution. We conclude that the legislation has the

impermissible effect of advancing one religious sect and that it

is unconstitutional.

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I.

The long history underlying this action is fully chronicled

in previous opinions by the Supreme Court of the United

States and this Court (see, Board of Educ. of Kiryas Joel Vil.

School Dist. v. Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129

L.Ed.2d 546; Grumet v. Cuomo, 90 N.Y.2d 57, 659 N.Y.S.2d

173, 681 N.E.2d 340; Grumet v. Board of Educ. of Kiryas Joel

Vil. School Dist., 81 N.Y.2d 518, 601 N.Y.S.2d 61, 618

N.E.2d 94, affd 512 U.S. 687, 114 S.Ct. 2481, 129 L.Ed.2d

546; Board of Educ. of Monroe-Woodbury Cent. School Dist.

v. Wieder, 72 N.Y.2d 174, 531 N.Y.S.2d 889, 527 N.E.2d

767). Kiryas Joel is a village comprised of Satmar Hasidic

Jews residing in Orange County, New York. Residents of

Kiryas Joel are devoutly religious and, among other things,

follow a strict interpretation of the Torah, segregate the sexes

outside the home and dress in a distinctive manner. The

children of the Village are educated in parochial schools--boys

at the United Talmudic Academy, where they are taught the

Torah and girls at Bais Rochel, where they are instructed and

prepared for their roles as wives and mothers. Neither school,

however, provides special educational services to handicapped

children who, under State and Federal law, are entitled to such

services even when enrolled in private schools (Individuals

with Disabilities Education Act, 20 U.S.C. § 1400 et seq.).

Prior to 1985, the handicapped children of Kiryas Joel,

located within the Monroe-Woodbury Central School District,

received special educational services provided by

Monroe-Woodbury in a building annexed to Bais Rochel. In

1985, following the decision of the Supreme Court in Aguilar

v. Felton (473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290) and

Grand Rapids School Dist. v. Ball (473 U.S. 373, 105 S.Ct.

3248, 87 L.Ed.2d 267)--which ruled that publicly funded

classes on religious school premises violated the

Establishment Clause-- Monroe-Woodbury ceased offering

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on-site schooling to Kiryas Joel’s handicapped children. That

decision, now overruled by the Supreme Court, triggered the

years of litigation preceding this appeal.

After several months of sending their handicapped

children to public schools to receive the special education

services, the parents of Kiryas Joel refused to continue the

arrangement, alleging that the children experienced fear and

trauma in leaving their community and interacting with people

whose ways were so different from theirs (Board of Educ. of

Monroe-Woodbury Cent. School Dist. v. Wieder, 72 N.Y.2d

174, 181, 531 N.Y.S.2d 889, 527 N.E.2d 767, supra ). Many

sought administrative review of Monroe-Woodbury’s decision

to offer the special education services only in public schools.

Monroe-Woodbury commenced a declaratory judgment

action, seeking a declaration that Education Law § 3602-c

compelled it to furnish special education services only in

regular classes and programs of the public schools, and not

elsewhere. This Court ruled that the law neither compelled

Monroe-Woodbury to provide special education to Kiryas

Joel’s handicapped children in public schools, nor required it

to do so in a segregated setting, as was urged by Kiryas Joel

(id., at 188, 531 N.Y.S.2d 889, 527 N.E.2d 767). Instead, this

Court ruled that Monroe-Woodbury provide the special

services at a site reasonably accessible to Kiryas Joel’s

handicapped children (id., at 184, 531 N.Y.S.2d 889, 527

N.E.2d 767).

A. KIRYAS JOEL I

In an effort to resolve the longstanding controversy

between Kiryas Joel and Monroe-Woodbury, the Legislature

enacted Chapter 748 of the Laws of 1989,' which established a

. ucation Law § 1504(3), as added by former L.1989, ch. 748

provided:

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union free school district coterminous with Kiryas Joel within

the boundaries of Monroe-Woodbury. In Grumet v. Board of

Educ. of Kiryas Joel Vil. School Dist., (81 N.Y.2d 518, 601

N.Y.S.2d 61, 618 N.E.2d 94, supra ), this Court held that

Chapter 748 contravened the Establishment Clause of the First

Amendment of the Federal Constitution because it violated the

second prong of the three-part test delineated in Lemon v.

Kurtzman (403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745). The

Court reasoned that because the newly formed school district

was coterminous with Kiryas Joel, only Hasidic children

would attend the public school, and only members of the

Hasidic sect would likely serve on the school board. The Court

concluded that the statute therefore constituted a “symbolic

union of church and State effected by the establishment of the

Kiryas Joel Village School District * * * [and was] likely to be

perceived by the Satmarer Hasidim as an endorsement of their

religious choices, or by nonadherents as a disapproval of their

individual religious choices” (Grumet v. Board of Educ., 81

N.Y.2d, supra, at 529, citing Grand Rapids School Dist. v.

Ball 473 US, supra, at 390).

The Supreme Court affirmed this Court’s holding in Board

of Educ. of Kiryas Joel Vil. School Dist. v. Grumet (512 U.S.

687, 114 S.Ct. 2481, 129 L.Ed.2d 546 [Kiryas Joel I] ). Ina

“Section 1. The territory of the village of Kiryas Joel in the town of

Monroe, Orange County, on the date when this act shall take effect,

shall be and hereby is constituted a separate school district, and shall

be known as the Kiryas Joel village school district and shall have and

enjoy all the powers and duties of a union free school district under the

provisions of the education law.

§ 2. Such district shall be under the control of a board of education,

which shall be composed of from five to nine members elected by the

qualified voters of the village of Kiryas Joel, said members to serve for

terms not exceeding five years.

§ 3. This act shall take effect on the first day of July next succeeding

the date on which it shall have become a law.”

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6-3 decision, the Supreme Court ruled that Chapter 748

violated the prohibition against government establishment of

religion because the act was “tantamount to an allocation of

political power on a religious criterion and neither presupposes

nor requires government impartiality towards religion” (512

US, at 690). The Court stated that the statute departed from a

constitutional requirement of neutrality toward religion by

delegating the State’s discretionary authority over public

schools to a group defined by its character as a religious

community, in a legal and historical context that gives no

assurances that governmental power has been or will be

exercised neutrally” (id, at 696; see also, id, at 703). The

legislative act, in the words of the Supreme Court, left “the

Court without any direct way to review such state action for

the purpose of safeguarding a principle at the heart of the

Establishment Clause, that government should not prefer one

religion to another, or religion to irreligion” (id., at 703).

B. KIRYAS JOEL II

Eleven days after the Supreme Court’s decision in Kiryas

Joel I, the Legislature responded by passing Chapter 241 of

the Laws of 1994. Under the new statute, a municipality

located wholly within a single central or union free school

district but whose boundaries were not coterminous with the

boundaries of any preexisting school district could establish its

own school district whenever the educational interests of the

community required it (Grumet v. Cuomo, 90 N.Y.2d 57, 659

N.Y.S.2d 173, 681 N.E.2d 340 (hereinafter, Kiryas Joel II |,

citing former Education Law § 1504[3][a]).? The statute set

? Former Education Law § 1504(3)a), as added by L.1994, ch. 24]

stated:

(i) the enrollment of the municipality seeking to organize such new

school district equals at least two thousand children, and is no greater

than sixty percent of the enrollment of the existing school district from

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forth facially neutral criteria that a municipality could satisfy

in order to establish a school district and delineated the process

by which the new school district could be formed. The statute

further defined the term “municipality” as “a city, town or

village in existence as of the effective date of this subdivision”

(id).

This Court held Chapter 241 of the Laws of 1994

unconstitutional for two reasons (Grumet v. Cuomo, supra ).

First, this Court determined that although the statute was

facially neutral, it had a nonneutral effect of allowing Kiryas

Joel to create its own school district without providing the

same opportunity to other groups. Specifically, the Court

reasoned that by limiting its applicability to municipalities “in

existence as of the effective date of” the statute, any group,

religious or nonreligious, subsequently incorporated as a

municipality was effectively cut off from utilizing Chapter

241’s procedures (id, at 72, 659 N.Y.S.2d 173, 681 N.E.2d

340). The definitional limitation manifested itself in such a

way that only one sect reaped the benefits of the

statute--Kiryas Joel. The Court noted that the Legislature

might have achieved a constitutionally acceptable result if it

had enacted a law of “general applicability that the Village of

Kiryas Joel, as one in a broad array of eligible municipalities,

might have invoked” (id, at 75, 659 N.Y.S.2d 173, 681

N.E.2d 340 [emphasis added] ).

which such new school district will be organized; (ii) such new school

district would have an actual valuation per total wealth pupil unit at

least equal to the statewide average; (iii) the enrollment of the existing

school district from which such new school district will be organized

equals at least two thousand children, excluding the residents of such

municipality; and (iv) the actual valuation per total wealth pupil unit of

such existing school district will not increase or decrease by more than

ten percent following the organization of the new school district by

such municipality.”

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Second, the Court determined that Chapter 241, like its

predecessor, failed the second prong of the Lemon test (id, at

68). The Court stated that, inasmuch as Kiryas Joel was the

only municipality eligible to benefit from the statute, “the

enactment of Chapter 241 would be perceived as an act of

governmental favor for the sole benefit of the Satmar sect”

(id., at 76).

C. THE STATUTE UNDER REVIEW

Three months after the Court’s determination in Kiryas

Joel II that Chapter 241 was unconstitutional, the Legislature

enacted a third statute--Chapter 390 of the Laws of 1997, or

“The Kiryas Joel School Bill”--which is before us on this

appeal (Education Law § 1504, added by L 1997, ch 390).

Education Law § 1504° delineates criteria which a

municipality, “situated wholly within one central or union free

school district but whose boundaries are not coterminous with

* Education Law § 1504(3), as added by L.1997, ch. 390, states in

full:

“3. Any municipality situated wholly within one central or union free

school district but whose boundaries are not coterminous with the

boundaries of such school district may organize, pursuant to the

provision of the subdivision, a new union free school district

consisting of the entire territory of such municipality whenever

required by the educational interest of the community.

“a. No such new school district may be organized unless: (i) the

enrollment of the municipality seeking to organize such new school

district equals at least two thousand children, and is no greater than

sixty percent of the enrollment of the existing school district from

which such new school district will be organized; (ii) such new school

district would have an actual valuation per total wealth pupil unit at

least equal to the statewide average; and (iii) the enrollment of the

existing school district from which such new school district will be

organized equals at least two thousand children, excluding the

residents of such municipality.”

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the boundaries of such school district,” may follow in order to

establish its own school district. The statute prescribes that (i)

the new school district equal at least two thousand children

and that it be no greater than sixty percent of the enrollment of

the existing school district from which the school district will

be organized, (ii) the newly-formed district have an actual

valuation per total wealth pupil unit at least equai to the

statewide average, and (iii) the enrollment of the existing

school district from which the new district is formed equal at

least two thousand children, excluding the residents of the

municipality (Education Law § 1504[3][a], as added by

L.1997, ch. 390).

Plaintiffs Louis Grumet and Caroline Shipley, citizen

taxpayers,’ commenced the present action against the

Governor and various departments and officials, the Board of

Education of the Kiryas Joel Union Free School and

Monroe-Woodbury, challenging the constitutionality of

Chapter 390 under both the Federal and State Constitutions.

The court concluded that Chapter 390 definitively applies to

only two municipalities--Kiryas Joel and one other--and that

the law represented unequivocal but impermissible favoritism

by the State to the Satmar community. The court granted

plaintiffs’ motion for summary judgment and permanently

enjoined defendants “from taking any and all present, future

action or expending any State monies or resources for the

purpose of implementing Chapter 390 of the Laws of 1997.”

The Appellate Division unanimously affirmed, agreeing

that the record supports the conclusion that the new statute

* At the outset of the controversy the New York State School Boards

Association, Shipley and Grumet were named plaintiffs. Although,

technically, the Association was dismissed for lack of standing, the record

continues to reflect plaintiffs’ counsel as the New York State School

Boards Association.

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applies to only two of the State’s 1,545 municipalities and

concluding that Chapter 390 is not a “ ‘truly religious- neutral

law of general applicability * * * [available to] a broad array

of eligible municipalities’ “ (Grumet v. Pataki, 244 A.D.2d 31,

36, 675 N.Y.S.2d 662, quoting Grumet v. Cuomo, 90 N.Y.2d,

supra, at 75). The Appellate Division further concluded that

Chapter 390 failed the second prong of the Lemon test because

it “clearly provides an impermissible preference to the Village

in response to the Satmars’ desire to provide their handicapped

children with special education services in an exclusive Satmar

environment” in light of the statute’s legislative history and

context (id., at 36-37).

Finally, the Appellate Division noted that the Supreme

Court’s decision in Agostini v. Felton (521 U.S. 203, 117

S.Ct. 1997, 138 L.Ed.2d 391) overruled the Court’s prior

decision in Aguilar v. Felton (473 U.S. 402, 105 S.Ct. 3232,

87 L.Ed.2d 290, supra ). Thus, Monroe-Woodbury was no

longer precluded from offering Kiryas Joel’s children special

educational services at the Hasidic school. Accordingly, the

court stated that “the fact that the underlying reason for the

creation of the challenged school districts has now been

eliminated also supports plaintiffs’ assertion that Chapter 390

should be perceived as yet another improper endorsement by

the Legislature in providing the Satmar community the

continued existence of a publicly funded exclusive

environment in which to educate their children in accordance

with their religious preferences” (244 A.D.2d, at 37, 675

N.Y.S.2d 662).

Defendants appealed as of right, and we now affirm the

order of the Appellate Division.’

* On this appeal, the American Jewish Congress submitted a brief

amicus curiae arguing that Chapter 390 is unconstitutional, and the Becket

Fund for Religious Liberty argued that the statute is constitutional.

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Il.

The Establishment Clause of the First Amendment of the

Federal Constitution, made applicable to the States through the

Fourteenth Amendment, prescribes that “Congress shall make

no law respecting an establishment of religion” (U.S. Const.

lst Amend.). The Establishment Clause ensures that neither

the State nor the Federal government “can pass laws which aid

one religion, aid all religions, or prefer one religion over

another” (Everson v. Board of Education, 330 U.S. 1, 15, 67

S.Ct. 504, 91 L.Ed. 711). The clause requires that states be

“neutral in * * * [their] relations with groups of religious

believers and nonbelievers” (id, at 18). Applying these

fundamental! neutrality principles, this Court has stated that

“statutes of general applicability that extend their benefits

without regard to religion honor the neutrality requirement and

are generally beyond Establishment Clause reproach” (Grumet

v. Cuomo, 90 N.Y.2d, supra, at 69). On the other hand, the

Establishment Clause is violated when a sectarian school

enlists “the machinery of the State to enforce a religious

orthodoxy” (Lee v. Weisman, 505 U.S. 577, 592, 112 S.Ct.

2649, 120 L.Ed.2d 467).°

Significantly, the facial neutrality of a law is not

dispositive (id, citing Church of Lukumi Babalu Aye v.

Hialeah, 508 U.S. 520, 534, 113 S.Ct. 2217, 124 L.Ed.2d 472

[“The Free Exercise Clause, like the Establishment Clause,

extends beyond facial discrimination”] ). In determining

whether a statute comports with fundamental Establishment

Clause principles, and is “truly religion-neutral and generally

® While the dissent correctly notes that statutes are presumptively

constitutional, that doctrine cannot insulate a statute that violates

fundamental neutrality principles (see, e.g., Grumet v. Cuomo, 90 N.Y .2d

57, 659 N.Y.S.2d 173, 681 N.E.2d 340, supra ).

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applicable,” a court must scrutinize the law both in form and

effect (Grumet v. Cuomo, 90 N.Y.2d, supra, at 70).

Considering both the form and the effect of the statute now

before us, we conclude that Chapter 390 violates fundamental

Establishment Clause neutrality principles. Although Chapter

390 sets forth facially neutral criteria, any attempt to

characterize the statute as a religion-neutral law of general

applicability is belied by its actual effect (Board of Educ. of

Kiryas Joel Vil. School Dist. v. Grumet, 512 US, supra, at

703). Presently, Chapter 390 potentially benefits only the

Village of Kiryas Joel and one other of the State’s 1,545

municipalities--the Town of Stony Point.’ In practical effect,

therefore, the religious community of Kiryas Joel is not

“merely one in a series of many communities” eligible for

equal treatment under Chapter 390’s special school district

laws (512 US, supra, at 703-704; see also, Grumet v. Cuomo,

90 N.Y.2d 57, 73, 659 N.Y.S.2d 173, 681 N.E.2d 340).* That

” The dissent cites a 1997 memorandum submitted by the Governor in

support of the statute’s enactment, noting that ten municipalities would be

eligible to form school districts under Chapter 390 (dissent, pp. 15). Both

lower courts, however, concluded from the record statistics that only two

are eligible--- Kiryas Joel and Stony Point. Appellants themselves do not

assert that there are ten eligible municipalities. Appellants themselves say

only that the number of present and future municipalities that qualify under

the statute “remains uncertain” and “may exceed” the two that have been

identified. They identify no additional eligible municipalities. Defendants’

tenuous and speculative assertions that other municipalities will qualify

under the statute’s criteria in the future raise only “theoretical possibilities”

that lend no meaningful support to the contention that Chapter 390 is a

religion-neutral law of general applicability (Kiryas Joel I], 90 N.Y.2d 57,

71, 73, 659 N.Y.S.2d 173, 681 N.E.2d 340).

* We do not apply a “precedentially unsupported” “broad spectrum

theory” here (dissent, pp. 13-17). See, Widmar v. Vincent, 454 U.S. 263,

274, 102 S.Ct. 269, 70 L.Ed.2d 440, supra; Board of Educ. of the Westside

Comm. Schools v. Mergens, 496 U.S. 226, 252, 110 S.Ct. 2356, 110

L.Ed.2d 191; Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 673,

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only two municipalities in all of New York State qualify under

Chapter 390 underscores the fact that groups finding

themselves in a situation similar to that confronting the Satmar

community will be unable to avail themselves of the statute’s

benefits. Indeed, because the statute’s qualifying criteria are

consciously drawn to. benefit Kiryas Joel, other

communities--both religious and_ secular--with similar

educational needs will not have equal opportunity to create a

publicly-funded school district under Chapter 390. Thus, the

non- neutral effect of the statute is to secure for one religious

community a unique and significant benefit--a “public school”

where all the students adhere to the tenets of a particular

religion--unavailable to other, similarly situated communities.

In doing so, Chapter 390 violates Establishment Clause

principles by preferring one religion over others (512 US,

supra, at 703).

Chapter 390 eliminated some of the fatal flaws of Chapter

241--its unconstitutional predecessor--but the effect of the two

Statutes is virtually identical. Although only one

municipality--Kiryas Joel--qualified under the prior statute, it

does not follow that Chapter 390--by allowing one additional

municipality to qualify under the statute--is a general,

religion-neutral law. Indeed, while it is true that Chapter 390

eliminated the two qualification criteria of Chapter 241 that

were devoid of any legitimate purpose and plainly intended to

limit eligibility under the statute to Kiryas Joel, the new statute

90 S.Ct. 1409, 25 L.Ed.2d 697, supra; Bowen v. Kendrick, 487 U.S. 589,

608, 108 S.Ct. 2562, 101 L.Ed.2d 520; Kiryas Joel II, 90 N.Y.2d, supra at

70, 75; Grumet v. Cuomo, 90 N.Y.2d 57, 70, 75, 659 N.Y.S.2d 173, 681

N.E.2d 340. Moreover, Agostini does not support the proposition that, in

determining secular effect, courts need not consider whether a challenged

State action benefits a broad spectrum of groups (dissent, pp. 14-15; see,

Agostini, 521 US, at 233, supra [citing Widmar, 454 US, at 274, supra, for

the proposition that the “provision of benefits to so broad a spectrum of

groups is an important index of secular effect’’]).

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fails to eradicate the earlier statute’s overriding flaw. The

eligibility requirements under Chapter 390 are still limited in

such a way that permits the statute’s benefits to flow almost

exclusively to the religious sect it was plainly designed to aid

Thus, like its predecessor, Chapter 390 is not a neutral law of

general application.’

Ill.

In assessing the constitutionality of governmental action

under the Establishment Clause, the Supreme Court of the

United States has employed a number of tests, reflecting that

not all cases are susceptible of review under a single standard

(see, e.g., Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120

L.Ed.2d 467; County of Allegheny v. ACLU, 492 U.S. 573, 109

S.Ct. 3086, 106 L.Ed.2d 472; Larson v. Valente, 456 U.S. 228,

102 S.Ct. 1673, 72 L.Ed.2d 33; Marsh v. Chambers, 463 U.S.

783, 103 S.Ct. 3330, 77 L.Ed.2d 1019).

The standard most often used is the tripartite test of Lemon

v. Kurtzman (403 U.S. 602), which requires that legislation

have a secular purpose, that its principal effect neither advance

nor inhibit religion, and that it not foster excessive

entanglement between church and state. In recent years, the

Supreme Court has questioned the Lemon test, but has not

* This Court, in Grumet v. Cuomo (90 N.Y.2d 57, 659 N.Y.S.2d 173,

681 N.E.2d 340, supra ), did not suggest the outlines of Chapter 390 (see,

dissent, pp. 7, 20-21). The Court identified two eligibility criteria in

Chapter 241 that were devoid of any legitimate purpose, but never

suggested that mere deletion of those defective provisions would render the

Statute constitutional. To the contrary, the Court observed that “the

Legislature might have achieved a constitutionally acceptable result had it

enacted a truly religion-neutral law of general applicability that the Village

of Kiryas Joel, as one in a broad array of eligible municipalities, might

have invoked” (id, at 75, 659 N.Y.S.2d 173, 681 N.E.2d 340). That was

not done.

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abandoned it. Indeed, in Agostini v. Felton (521 U.S. 203, 117

S.Ct. 1997, 138 L.Ed.2d 391), the Court observed:

“To be sure, the general principles we use to evaluate

whether government aid violates the Establishment Clause

have not changed since Aguilar was decided. For example,

we continue to ask whether the government acted with the

purpose of advancing or inhibiting religion, and the nature

of that inquiry has remained largely unchanged. * * *

Likewise, we continue to explore whether the [government

action] has the ‘effect’ of advancing or inhibiting religion”

(id., at 222—223).

Agostini thus makes clear that the second prong of the

Lemon test--the requirement that a law’s “primary effect must

be one that neither advances nor inhibits religion”--remains a

consideration in assessing whether the Establishment Clause

has been violated. Thus, the question in this case continues to

be whether Chapter 390 of the Laws of 1997 has the effect of

advancing one religion over another. We conclude that it does.

Agostini, the most recent Supreme Court pronouncement

on the application of Establishment Clause principles,

presented a situation different from the one now before us. In

Agostini the Supreme Court reviewed whether the placement

of public school employees in parochial schools, under Title I

of the Elementary and Secondary Education Act for the

purpose of providing remedial education to disadvantaged

children, resulted in the impermissible effect of advancing

religion. As such, the Court’s “effects inquiry” necessarily

focused on whether the presence of public school teachers in

parochial school classrooms results in religious indoctrination

or the inculcation of religious messages, creating the

impression of a “symbolic union” or an “excessive

entanglement” between church and State (521 US, supra, at

222-223, 232-233).

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The Court concluded that having public school teachers

provide services to students in parochial schools does not have

an impermissible effect because it does not result in

governmental indoctrination, define its recipients by reference

to religion or create excessive governmental entanglement

with religion (521 US, supra, at 234). Under Title I, a broad

spectrum of disadvantaged children--from both secular and

religious schools--would be provided the same benefits on a

nondiscriminatory basis and as a resu!t, the Court noted, such

aid was less likely to have the effect of advancing religion (id.,

at 231; see also, id., at 210 [only 10% of the total number of

students eligible for Title I services are private school students

attending sectarian schools; some 183,000 children nationwide

received Title I benefits] ). The Court further noted that such a

program could not be viewed as an endorsement of religion

(id., at 235).

Unlike Agostini, the act under review here does not fall

into one of the two usual types of Establishment Clause cases:

Chapter 390 neither provides public aid to a parochial school

nor prescribes religious practices for a public school. Rather, it

delegates to a religious group the governmental power to form

its own public school district, which carries with it vast powers

(see, Grumet v. Board of Educ. of Kiryas Joel Village Sch.

Dist., 81 N.Y.2d 518, 537, n. 5, 601 N.Y.S.2d 61, 618 N.E.2d

94 [Kaye, J., concurring] ). Thus, even more directly pertinent

to our analysis is Kiryas Joel I (512 U.S. 687, 114 S.Ct. 2481,

129 L.Ed.2d 546, supra ), with facts and issues similar to those

now before us. In Kiryas Joel I, the Supreme Court, implicitly

relying upon Lemon’s second prong, concluded that the statute

creating the Kiryas Joel School District was unconstitutional

because it provided a benefit to the Satmar community that

was not provided equally to other groups (512 US, at 703-704,

citing Larkin v. Grendel’s Den, 459 U.S. 116, 103 S.Ct. 505,

74 L.Ed.2d 297). The Court concluded that by singling out

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Kiryas Joel for special treatment, as opposed to making the

statutory benefits available to “many communities,” the statute

violated the principle of neutrality to which all permissible

religious accommodations must adhere (id; see also, id, at

703 [because statute was so narrowly drawn, it provided “no

assurance that the next similarly situated group seeking a

school district of its own will receive one] ). The Court

determined that the statute constituted an impermissible

religious accommodation under the Establishment Clause and

focused on the fact that the statute’s exclusive delegation of

significant governmental power to a religious sect failed to

ensure that similarly situated groups would also be able to

avail themselves of that power (id., at 705-708).

This Court’s unanimous decision in Grumet v. Cuomo (90

N.Y.2d 57, 659 N.Y.S.2d 173, 681 N.E.2d 340, supra ), three

years after the Supreme Court’s decision in Kiryas Joel I, also

provides guidance. Analysis of whether Chapter 241 was a

“truly religion-neutral and generally applicable” law was

based on the fundamental neutrality principles expressed by

the Supreme Court’s many Establishment Clause cases,

including Kiryas Joel J. This Court, noting that the Supreme

Court had recognized as an important index of secular effect

the “ ‘provision of benefits to [a] broad * * * spectrum of

groups,’ “ found that the corollary to that proposition was also

true--namely, that the “provision of a governmental benefit to

a restricted class * * * formed along religious lines *.* * is a

telling index of nonneutral sectarian effect” (id., at 70, citing

Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d

440, supra; Board of Educ. of the Westside Comm. Schools v.

Mergens, 496 U.S. 226, 248, 110 S.Ct. 2356, 110 L.Ed.2d

191). Applying established neutrality requirements, the Court

concluded that Chapter 241 had the nonneutral effect of

allowing only Kiryas Joel to reap the statute’s benefits,

without providing the same opportunity to other groups.

er ee Teen

17a

As such, even though the statute was facially neutral and

did not specifically name the Village of Kiryas Joel--as was

the case in Kiryas Joel J--it still could not be considered a

generally applicable, religion-neutral law (id., at 73 [statute did

not provide benefits to Satmar community “ ‘simply as one of

many communities eligible for equal treatment under a [truly]

general law’ ”], citing Kiryas Joel I, 512 US, at 703, supra ).

Furthermore, the Court determined that Chapter 241 failed the

second prong of the Lemon test because its actual and

perceived effect was solely to advance the interests of the

Satmar community’® (id., at 73-76). The Court also noted that

“the Legislature might have achieved a constitutionally

acceptable result had it enacted a truly religion-neutral law of

general applicability that the Village of Kiryas Joel, as one in a

broad array of eligible municipalities, might have invoked”

(id., at 75).

In sum, while several standards have been employed by

the Supreme Court to determine the constitutionality of a

statute under the Establishment Clause, they all build upon the

same foundation: fundamental neutrality principles. Indeed, to

consider whether a statute has the impermissible effect of

advancing religion or constitutes an impermissible religious

'° While the status of the endorsement test employed by this Court in

Grumet v. Cuomo is uncertain, consideration of a statute’s actual effect--the

central focus of our analysis here--remains a valid inquiry in determining

whether a law has the primary effect of impermissibly advancing religion

(see, Agostini, 521 US, at 222-223, supra; see also, id, at 235 [the same

considerations that led the Court to conclude that Title I did not have the

effect of advancing religion also required the Supreme Court “to conclude

that [the program] cannot reasonably be viewed as an endorsement of

religion”}; Martha M. McCarthy, The Road to Agostini and Beyond, 124

Ed. Law Rep. 771 [Agostini can be read as “providing modest support” for

the endorsement standard championed by Justice O’Connor in reviewing

Establishment Clause claims]; but see, dissent, pp. 14-15 [questioning

viability of endorsement test in the wake of Agostini]). In any event, we do

not employ an endorsement analysis in this case.

—EEEeEeEeEEEEeEeEeEeEe—eEEeeee ==

18a

accommodation is essentially to examine both sides of a coin.

Under either inquiry, a statute so narrowly drawn that it

delegates a significant governmental power almost exclusively

to a single religious group, and provides no assurance that the

statute’s benefits will be equally available to others, is

unconstitutional.

IV.

Drawing on Supreme Court precedents, as well as our own

case law, we conclude that, for many of the same reasons

Chapter 390 violates fundamental Establishment Clause

neutrality principles, it has the primary effect of advancing one

religion over others and constitutes an impermissible religious

accommodation.

The events surrounding the enactment of Chapter 390 offer

strong support for the conclusion that Chapter 390 has the

effect of advancing the religious beliefs of the Satmars over

others. The legislative history of Chapter 390 reveals that it

was enacted in direct response to Kiryas Joel II and with the

intent to accomplish what previous legislative efforts had

failed to accomplish: provide the residents of Kiryas Joel with

an exclusively Satmar “public school” environment, at

taxpayer expense, in which to educate their children. Indeed,

the legislative debates reveal that the law was referred to as the

“Kiryas Joel School Bill” and that Chapter 390 was commonly

referred to as “Kiryas Joel No. 3” (New York State Assembly,

L.1997, ch. 390, Legislative Debates, August 4, 1997, at 88).

That Chapter 390 was designed to accommodate the needs

of the religious community of Kiryas Joel is not, however,

what renders it unconstitutional. Indeed, a_ statute

accommodating a religious group does not automatically

create the impermissible effect of advancing religion (Kiryas

Joel I, 512 US, supra, at 705-706; see also, Agostini, 521 US,

19a

supra, at 233). Supreme Court precedent makes clear that a

statute accommodating religious needs by alleviating special

burdens will not have the primary effect of advancing religion

so long as the secular effect of the statute is sufficiently

separable from its religious impact and the class benefitted by

the statute is sufficiently broad (see, Grumet v. Cuomo, 90

N.Y.2d 57, 659 N.Y.S.2d 173, 681 N.E.2d 340, supra;

Committee for Public Educ. v. Nyquist, 413 U.S. 756, 768;

Widmar v. Vincent, 454 U.S. 263, 274, 102 S.Ct. 269, 70

L.Ed.2d 440, supra; Walz v. Tax Comm’ n of City of New York,

397 U.S. 664, 673, 90 S.Ct. 1409, 25 L.Ed.2d 697, supra;

Mueller v. Allen, 463 U.S. 388, 397, 103 S.Ct. 3062, 77

L.Ed.2d 721). In other words, a permissible accommodation

must honor the principle of neutrality as among religions

(Kiryas Joel I, 512 US, supra, at 706-707; id, at 705 [“there is

‘ample room under the Establishment Clause for benevolent

neutrality which will permit religious exercise to exist without

sponsorship and without interference’ ”’ ).

Applying the foregoing principles here, it is clear that

Chapter 390 does not constitute a permissible religious

accommodation. The class benefitted under Chapter 390 is

anything but broad. Recognition of the fact that the statute

benefits an extremely narrow class of municipalities is not a

mere exercise in arithmetic or counting (see, dissent, pp. 13,

16). The Supreme Court has held that the provision of benefits

to a “broad * * * spectrum of groups is an important index of

secular effect”"' (Widmar v. Vincent, 433 U.S. 229, 274, 97

S.Ct. 2593, 53 L.Ed.2d 714, supra; see also, Kiryas Joel I, 512

US, supra, at 703 [because Kiryas Joel “did not receive its

'' Contrary to the dissent’s reading of the majority opinion as holding

that statutes that do not apply to a sufficiently broad spectrum of religious

groups will automatically be considered unconstitutional, there is nothing

in our analysis that stands for that proposition (dissent, pp. 12 [citing

majority opn, pp. 22-24] ).

20a

new governmental authority simply as one of many

communities eligible for equal treatment under a general law,”

neutrality could not be assured]; Board of Educ. of the

Westside Comm. Schools v. Mergens, 496 U.S. 226, 252, 110

S.Ct. 2356, 110 L.Ed.2d 191, supra [statute did not have the

primary effect of advancing religion where high school

Christian club was merely one in a broad spectrum of clubs

granted benefits thereunder]; Walz v. Tax Comm’n of City of

New York, 397 U.S. 664, 673, 90 S.Ct. 1409, 25 L.Ed.2d 697,

supra [property tax exemption for religious properties upheld

where it applied to “broad class of property owned by

nonprofit, quasi-public corporations,” not just religious groups

or churches]; Bowen v. Kendrick, 487 U.S. 589, 608, 108 S.Ct.

2562, i101 L.Ed.2d 520 [statute enlisting “wide spectrum of

organizations” upheld]; Kiryas Joel IJ, 90 N.Y.2d, supra, at 75

{a truly religion-neutral law of general applicability would

apply to Kiryas Joel as “one in a broad array of eligible

municipalities”] ). Given Chapter 390’s applicability to only

two municipalities--one of which is a religious sect clearly

intended to be the statute’s beneficiary--the secular effect of

the statute is virtually indiscernible.’

Taking into account both the origin and operation of the

Statute, therefore, the conclusion is inescapable that Chapter

390 has the primary effect of advancing religion and

constitutes an impermissible accommodation (Kiryas Joel I,

512 U.S. 687, 698, 706-707, 114 S.Ct. 2481, 129 L.Ed.2d 546,

supra; see also, Grumet v. Board of Educ., 81 N.Y.2d 518,

601 N.Y.S.2d 61, 618 N.E.2d 94, supra; Grumet v. Cuomo, 90

N.Y.2d 57, 659 N.Y.S.2d 173, 681 N.E.2d 340, supra ).

'? Any analogy between Chapter 390 and Village Law § 2-200, under

which Kiryas Joel incorporated, is misplaced (dissent, pp. 11-12). Indeed,

the Village Law provides a good example of a religion-neutral, generally

applicable law that applies to a broad spectrum of beneficiaries, and a good

contrast to Chapter 390.

2la

¥

As we previously noted, Chapter 748 was enacted in

response to the situation in which Kiryas Joel was placed after

Aguilar, and to address the conflict that ensued between

Monroe-Woodbury and Kiryas Joel (Grumet, 81 N.Y.2d,

supra, at 525, citing Governor’s Approval Mem., 1989 N.Y.

Legis. Ann., at 324). The subsequent legislation is an effort to

address the same problems. Since Agostini, the Supreme Court

has eliminated the obstacle posed by Aguilar to the education

of the handicapped children in an exclusive Satmar setting. As

noted in the legislative debates by opponents of Chapter 390:

“This legislation is legislation * * * that is not necessary. If

given time and given the inclination to make the process work,

students who are designed to be aided could be aided without

this legislation” (New York State Assembly, L.1997, ch. 390,

Legislative Debates, August 4, 1997, at 90). As such, the

Appellate Division properly concluded that enacting Chapter

390 would likely be perceived as a religious preference in light

of the arguably constitutionally permissible alternative

Agostini has provided.

Given the foregoing conclusions, we need not address the

challenges posed under the State Constitution.

We conclude with an observation that we hope has not

been lost on parties who have been locked in litigation for

more than 2 decade. The genesis of all this legislation and

litigation--the seeming insurmountability of Aguilar v.

Felton--- no longer exists. It is now possible, compatibly with

the Federal Constitution, to do what the parties wanted to do

before Aguilar stopped them. Given this new opportunity, we

strongly suggest that the parties make every effort to reach an

accord that will benefit the children, and themselves. This is

far preferable to the costly and inevitable prospect of further

22a

legal strife.

Accordingly, the order of the Appellate Division should be

affirmed, with costs.

BELLACOSA, J. (dissenting):

Respectfully, we would declare Chapter 390 of the Laws

of 1997 constitutional. Thus, our vote is to reverse the order of

the Appellate Division.

The constitutional cornerstone of this statute rests on three

strong pillars: (1) the presumption of constitutionality

afforded to every enactment of the Legislature; (2) the lack of

any persisting or new constitutional faults under presently

governing Establishment Clause jurisprudence; and (3) the

explicit removal from Chapter 390 of previously adjudicated

constitutional defects.

I.

Initially, the “simple, but well-founded, presumption that

an act of the Legislature is constitutional * * * can be upset

only by proof persuasive beyond a reasonable doubt” (Hotel

Dorset Co. v. Trust for Cultural Resources of City of N.Y., 46

N.Y.2d 358, 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284

[citations omitted] ). Indeed, this Court frequently prefaces its

statutory analyses with the acknowledgment that a legislative

enactment derives from a “co-equal branch of government”,

and any challenger trying to undo a statute bears a heavy

burden (City of New York v. State of New York, 76 N.Y.2d

479, 485, 561 N.Y.S.2d 154, 562 N.E.2d 118; see also,

Elmwood-Utica Houses v. Buffalo Sewer Auth., 65 N.Y.2d

489, 495, 492 N.Y.S.2d 931, 482 N.E.2d 549).

As a corollary to these fundamental premises, a “further

23a

presumption, long recognized by this court, [is] that the

Legislature has investigated and found facts necessary to

support the legislation * * * as well as the existence of a

situation showing or indicating its need or desirability” (Hotel

Dorset Co. v.Trust for Cultural Resources of City of N.Y.,

supra, at 370, 413 N.Y.S.2d 357, 385 N.E.2d 1284 [citations

omitted] ). Balancing the myriad policy and empirical

considerations that affect lawmaking is a function entrusted by

the Constitution to the Legislature, the elected representatives

of the people; courts are obliged therefore to be exceedingly

wary of substituting their own balancing exercises (see, Matter

of Wolpoff v. Cuomo, 80 N.Y.2d 70, 79, 587 N.Y.S.2d 560,

600 N.E.2d 191). In particular, courts owe respectful

attentiveness “to public funding programs essential to

addressing the problems of modern life, unless such programs

are ‘patently illegal’ ” (Schultz v. State of New York, 84

N.Y.2d 231, 241, 616 N.Y.S.2d 343, 639 N.E.2d 1140, citing

Hotel Dorset Co. v.Trust for Cultural Resources, supra ).

Chapter 390 of the Laws of 1997 allows some public

funding to qualifying municipalities through the

instrumentality of a separate public school district. It is

uncontroverted that the Legislature’s initial impetus for

crafting an enactment was to redress a modern educational

conundrum encountered by the Village of Kiryas Joel with

respect to some of its neediest citizens, its handicapped

children. It is also undisputed that when the two prior versions

of statutory authorization were declared constitutionally faulty,

the Legislature corrected the identified problems. Indeed, it is

now three times that different Legislatures have passed, and

different Governors have approved, legislation to address the

conceded concerns of these needy children within the

environment of their civic community.

We dissenters examine the legislation as enveloped, not

“insulated” as the Majority suggests, by its traditional array of

24a

presumed legitimacy (slip op at 12, n6). From our

well-established analytical perspective, the Legislature meets

all constitutional prescriptions, including those previously

delineated by this Court.

Il.

In May 1997, this Court nullified chapter 241 of the Laws

of 1994, the Legislature’s second attempt to allow the people

of the incorporated Village of Kiryas Joel to form a separate

public school district. This Court found the definition of

municipality as the principal flaw because it was limited, such

that no existing municipality, aside from Kiryas Joel met, or

probably ever could meet, the statutory requirement.

This Court unanimously agreed that the statutory effect of

singling out the Village of Kiryas Joel in this manner violated

the second prong of the Lemon test, which mandates that

government action cannot have a principal or primary “effect”

of advancing or inhibiting religion. Also relying on an

“endorsement” examination, this Court noted that even when a

challenged statute appears neutral on its face, the Supreme

Court has guarded against State action that is sufficiently

likely to be perceived by adherents of a religion as an

endorsement and by nonadherents as a disapproval of their

religious or nonreligious choices (see, Grumet v. Cuomo, 90

N.Y.2d 57, 74, 659 N.Y.S.2d 173, 681 N.E.2d 340, citing

School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390,

overruled in part by Agostini v. Felton, 521 U.S. 203, 117

S.Ct. 1997, 138 L.Ed.2d 391).

A month later, in June 1997, the Supreme Court of the

United States decided Agostini v. Felton (521 U.S. 203, 117

S.Ct. 1997, 138 L.Ed.2d 391, supra ). It scrutinized the

evolution of Establishment Clause jurisprudence since the

1984 decision of Aguilar v. Felton (473 U.S. 402, 105 S.Ct.

nis Sutin

25a

3232, 87 L.Ed.2d 290) and overruled it. Ironically, Aguilar

had triggered the initial difficulties between the Village of

Kiryas Joel and the Monroe-Woodbury School District. The

Supreme Court, in Agostini, without expressly indicating so,

compressed the Lemon test into two prongs--(1) whether the

government acted with a secular purpose; and (2) whether the

government aid has the “effect” of advancing or inhibiting

religion, which includes an examination of whether the aid

results in an excessive entanglement between church and state

(see, Agostini v. Felton, supra, at 222-223, 232-233; see also,

Baxter, Managing Legal Change: The Transformation of

Establishment Clause Law, 46 UCLA L Rev 343, 399-409

[1998] ).

Indeed, the Agostini Court went into great detail about

changes in the contours of this jurisprudence since its Aguilar

and Ball decisions; specifically, changes emerged in the

Supreme Court’s understanding of the criteria used to assess

whether aid to religion has an impermissible effect (see,

Agostini v. Felton, supra, at 223). The Supreme Court stated

that the “three primary criteria we currently use to evaluate

whether government aid has the effect of advancing religion”

are: whether the aid results in governmental indoctrination;

whether aid recipients are defined by reference to religion; and

whether an excessive entanglement is created (id. , at 234).

Applying these criteria, Agostini stated that “where the aid

is allocated on the basis of neutral, secular criteria that neither

favor nor disfavor religion, and is made available to both

religious and secular beneficiaries on a nondiscriminatory

basis’, there is a less likely effect, of advancing religion (id., at

231). The Supreme Court very significantly and specifically

noted that Ball and Aguilar had not considered this important

result of neutral criteria (id, at 231). Further, using the same

delineated “effects” considerations to perform an

“endorsement” analysis, the Supreme Court also did not find

26a

an endorsement of religion where funding was provided on a

neutral basis (id., at 235; see also, Baxter, 46 UCLA L Rev,

supra, at 409). Accordingly, Agostini overruled Aguilar and

the pertinent parts of Ball (see, Agostini v. Felton, supra, at

236). In particular, the Agostini court noted that it was not

“willing to conclude that the constitutionality of an aid

program depends on the number of sectarian school students

who happen to receive the otherwise neutral aid” (id., at 229).

It was at this key point in the maturity of the First

Amendment (Establishment and Free Exercise of Religion)

that the New York State Legislature, in August 1997, enacted

Chapter 390 of the Laws of 1997.

Ill.

Since the examination of the first statutory effort in 1989,

various courts have indicated that a neutral statute would be

constitutionally acceptable. The Supreme Court of the United

States indicated that the 1989 statute, which referred to Kiryas

Joel by name, was too narrow considering the religious nature

of the Village and the “anomalously case-specific nature of the

legislature’s exercise of state authority” (Board of Ed. of

Kiryas Joel Vil. School Dist. v. Grumet, 512 U.S. 687, 703,

114 S.Ct. 2481, 129 L.Ed.2d 546, affirming Grumet v. Board

of Educ. of Kiryas Joel Vil. School Dist., 81 N.Y.2d 518, 601

N.Y.S.2d 61, 618 N.E.2d 94). Justice O’Connor, however,

suggested that “[a] district created under a generally applicable

scheme would be acceptable even though it coincides with a

village that was consciously created by its votes as an enclave

for their religious group” (id, at 717 [O’Connor, J.,

concurring] ).

Then, this Court found that the 1994 version of the statute,

which was considered facially neutral, still did not insure

appropriate neutrality in application. Due to the “nonneutral

27a

effect of allowing the religious community of Kiryas Joel, but

no other group at this time and probably ever, to create its own

school district,” the statute was deemed unconstitutional

(Grumet v. Cuomo, 90 N.Y.2d 57, 69, 659 N.Y.S.2d 173, 681

N.E.2d 340, supra ). On the other hand, the Court said that,

“statutes of general applicability that extend their benefits

without regard to religion honor the neutrality requirement and

are generally beyond Establishment Clause reproach” (id , 90

N.Y.2d 57, 69, 659 N.Y.S.2d 173, 681 N.E.2d 340).

Thus, at this Court’s explicit suggestion, the Legislature, in

Chapter 390 of the Laws of 1997, removed the defects of the

second statute, particularly the singular focus and effect of the

definition of municipality (see, id.). It cannot be denied that

Chapter 390 does not limit the effect of its remedial

authorization to the Village of Kiryas Joel alone; it

definitionally expands the reach of the statutory authorization

to at least one actual, additional secular entity, and countless

potential others.

The Court is unanimous that, in ruling on Chapter 390, this

Court is bound-- until the Supreme Court specifically chooses

to further recalibrate or overrule Lemon--to apply the

Establishment Clause principles promulgated in Agostini. Our

application, however, of Agostini’s version of the Lemon test

leads us as dissenters to the conclusion that Chapter 390 has a

clear secular purpose. It provides a “mechanism by which the

governing body of a municipality can initiate the process of

forming a school district” (Governor's Mem. approving

L.1997, ch. 390, 1997 N.Y. Legis. Ann., at 259). Even the

purpose of the original statute was to obtain the secular goal of

educating the handicapped children of Kiryas Joel (see,

Governor’s Mem. approving L.1989, ch. 748, 1989 N.Y.

Legis. Ann., at 324-325; Grumet v. Board of Educ. of Kiryas

Joel Vil. School Dist., 81 N.Y.2d 518, 550, 601 N.Y.S.2d 61,

618 N.E.2d 94, supra [Bellacosa J., dissenting] ).

28a

Further, the government “aid” here does not have the

effect of advancing religion. Quite to the contrary, it simply

grants permission to any qualifying municipality to create its

own public school district. After Agostini, it is no longer

presumed that improper religious indoctrination will occur

even in a parochial school sectarian setting (see, Agostini v.

Felton, supra, at 223). Thus, no justification exists for the

conclusion that the public school district at issue, which is

coterminous with the boundaries of the Village of Kiryas Joel,

will function any differently from any other public school

district. Indeed, the record of the Kiryas Joel School District

shows scrupulous adherence to _ secular personnel,

administration, syllabi, and teaching methods--and equally

scrupulous avoidance of sectarian, religious instruction or

indoctrination.

The direct “aid recipients” here are any qualifying

municipalities. They are defined without reference to religion

and with reference only to neutral secular criteria that were

emphasized in this Court’s previous adjudication concerning

this intractable conflict. Indeed, the recognized population and

wealth criteria are the typical factors used in effective

legislation. Pursuant to Agostini, courts must accord weight to

the neutrality of these qualifying factors as evidence that no

improper effect or endorsement of religion occurs (see, id., at

231). Also, it is entirely appropriate to acknowledge the

ultimate “aid recipients”--handicapped children in need of

special, secular education.

Finally, no excessive entanglement is engendered by

Chapter 390. “[T]o assess entanglement, we have looked to

‘the character and purposes of the institutions that are

benefitted, the nature of the aid that the State provides, and the

resulting relationship between the government and religious

authority’ ” (id, at 232 [citations omitted] ). Here, the

29a

institutions initially benefitted are municipalities

conscientiously endeavoring to serve their constituents, and

the Village of Kiryas Joel is such an_ incorporated

municipality. Contrary to a fundamental fallacy expressed in

the Majority’s analysis (slip op at 20-21), the resulting

relationship is not between government and a religious entity,

but between the State and its municipal subdivisions, which

includes the Village of Kiryas Joel. The State can provide

“aid” in the form of a new school district for any qualifying

municipality, much as it can now provide pre-Aguilar “aid” to

any qualifying parochial school.

The Supreme Court exercised care in Agostini to extricate

its jurisprudence from its own misstep and to explicate the

current state and sophisticated nuances of Establishment

Clause precedents. However, the Majority here, in effect

transforms the Agostini lesson into an instrument of

unremitting invalidation of State legislation.

IV.

It is necessary to address some specific and key differences

that we have with the Majority’s multi-faceted rationale. First,

a fundamentally flawed reliance is placed on an examination

of whether this statute provides an impermissible

accommodation of religion. A corollary of the Majority’s

inquiry in this regard searches for whether a sufficiently

“broad spectrum” of groups is benefitted. Further, the

constitutional, analytical mix pivots off- the legislative

“history” and “origin” of the statute (slip op at 21-24); thatisa .

faulty starting point. Finally, the Majority’s invocation of the

possibility of a renewed availability of the pre-Aguilar

municipal options is wholly inapplicable (contrast, Marbury v.

Madison, 52 U.S. [1 Cranch] 137 [1803] [on the establishment

of the seminal doctrine of judicial review, within limitations,

however, of the fundamental separation of powers doctrine]).

30a

A. Religious Accommodation

The Majority chooses to follow an analysis performed

earlier by the United States Supreme Court in Kiryas Joel I,

without the subsequent enlightenment of Agostini, because the

“facts and issues” before this Court are more similar, as they

see it, to those addressed in Kiryas Joel I (slip op at 18).

However, the Majority ignores the critical fact that the statute

now at issue is significantly different from the statute struck

down in Kiryas Joel /. It had specifically named the Village of

Kiryas Joel as the sole beneficiary of the first legislative effort.

Under that structure, as this Court and the Supreme Court

discerned, there was simply no guarantee that any other

similarly situated group would garner the same benefits (see,

Board of Educ. of Kiryas Joel Vil. School Dist. v. Grumet, 512

U.S. 687, 703, 114 S.Ct. 2481, 129 L.Ed.2d 546, supra ). The

initial statute constituted an impermissible accommodation

because it transferred political authority directly to a single

religious group (id, at 706).

In finding an impermissible accommodation under the

initial statute, the Supreme Court contrasted the statute with

the “neutral” Village Law under which Kiryas Joel had

incorporated (id, at 703). Significantly, this law permits any

group meeting certain “population and area requirements” to

incorporate (Village Law § 2-200). It cannot be denied that

Chapter 390 also utilizes such neutral population and area

requirements to transfer political authority to any qualifying

municipality. Thus, the new statute has corrected the aspects

of the legislation that failed the accommodation analysis in

Kiryas Joel I, and the Majority nevertheless interposes a

reconstituted standard in this regard.

This shaky accommodation concern incorporates another

facet of the Majority view that we dissenters view

3la

differently--the reliance on something dubbed a sufficiently

“broad spectrum” standard. Besides being precedentially

unsupportable, the resulting inquiry demonstrates the “moving

target” and “slippery slope” nature of the latest invalidation

test. For example, no court ever proposed that the problem

with Chapter 390 could be solved by making it apply to other

religious groups. Yet, the Majority now suggests that the

application to secular, as well as religious groups, is not

enough. If the statute does not apply to a sufficiently “broad

spectrum” of religious groups, then the Majority concludes

that it has the impermissible effect of advancing one religion

over others--an impermissible accommodation (see, slip op at

22- 24). That is plainly wrong.

B. Sufficiently “Broad Spectrum” Standard

The Court propounds today that Chapter 390 is not a

permissible accommodation because the class benefitted by it

is “anything but broad” (slip op at 22). Ancillary to this

determination is the discrete objection that the eligibility

requirements of the statute are “so narrowly drawn” as to

prevent other similarly situated groups from qualifying for the

statute’s entitlements.

Initially, this inverted analysis ignores the presumption of

constitutionality beyond a reasonable doubt. It also devalues

the constitutional burden into a mere counting exercise. Under

the standard presumption of constitutionality, the challengers

against Chapter 390 must bear the burden to demonstrate the

practical impossibility of any general application of the

legislation. Challengers did just that in Kiryas Joel II. Quite

differently here, the Majority’s insistence upon a showing that

Chapter 390 immediately applies to a sufficiently “broad

spectrum” of existing municipalities effectively switches the

judicial review standard into a _ presumption of

unconstitutionality. Moreover, it shifts the burden of

32a

overcoming the transformed standard onto the defenders of the

constitutionality of the statute. :

While not expressly so stated, the Majority’s concerns here

appear to stem largely from some apprehension that the State

action inhering in Chapter 390 will be perceived as an

endorsement of Satmar Hasidism (see, infra, at 19). This

concern was first reflected by this Court in Kiryas Joel I,

which referenced Grand Rapids School Dist. v. Ball (supra ).

After Agostini, however, Ball and the perception of

endorsement no longer provide the dispositive force that the

Majonity’s rationale gives it under the guise of the “broad

spectrum” requirement. The Majority flatly refuses to credit

the neutral criteria of the statute itself because of a

pre-determined concentration on its perceived sense of

advancement of one religion over another.

Even if the proponents had to meet this amorphous

constitutional standard, we note that it is not surprising that a

sufficient population or wealth shift has not occurred over the

short span of the statute’s existence so as to allow the

immediate qualification of more municipalities. Nor is it

remarkable that no potential groups have yet undertaken the

process of incorporating in order to pursue the benefits of a

statute, the constitutionality of which has remained mired in

controversy and litigation. The Majority’s constitutional

barnier--the impermissible accommodation due to an

insufficiently “broad spectrum” of religious groups--cannot be

dispositive or be given the prevailing weight that a

constitutionality-reviewing Court inaptly confers in this case.

Furthermore, precedent does not support the application of

this theory. Indeed, after Agostini, courts specifically need not

look at how many religious or nonreligious groups benefit

from a statute or challenged State action (see, Agostini v.

Felton, supra, at 229-230). Even if we were to recognize and

33a

conduct that analytical step, the current practical effect of

Chapter 390 is that it is equally applicable to sectarian, as well

as non- sectarian, municipal assemblages.

The Majority cancels Chapter 390 because it may

presently be available to only two municipalities--one

undeniably secular in every sense of the word. This contradicts

relevant and longstanding precedent and legislative practices

in this respect, as well as the expert proof adduced by the

proponents of the enactment and expressly adopted by the

Governor in signing the bill into law (see, Governor's Mem.

approving L.1997, ch. 390, 1997 Legis. Ann., at 259 [“Data

provided by the State Education Department show ten

municipalities throughout the State which are currently

eligible to form school districts under the criteria set forth in

this legislation, in addition to those that can become eligible in

the future ’] [emphasis added]; see also, Wolpoff v. Cuomo, 80

N.Y.2d 70, 79, 587 N.Y.S.2d 560, 600 N.E.2d 191, supra ). If

the mere fact that the source for Chapter 390 is traceable

Originally to one municipality becomes a litmus test of

constitutional dimension, the State would have many fewer

statutes on its books and the courts can look forward to a lot

more legislative review business on that challenge basis.

This Court has repeatedly upheld legislation which has an

initial effect on only one municipality so long as the statute, on

its face (with the formidable presumption of constitutionality

also going for it), is general enough that application to other

municipalities is real and available prospectively (see, Matter

of McAneny v. Board of Estimate & Apportionment of City of

N.Y., 232 N.Y. 377, 392-393, 134 N.E. 187; see also, Hotel

Dorset Co. v. Trust for Cultural Resources, supra, at 373, 413

N.Y.S.2d 357, 385 N.E.2d 1284). That is the nucleus and

thrust of much programmatic, remedial legislation. At the very

least, “there is no conclusive presumption to the contrary”

(McAneny v. Board of Estimate & Apportionment of City of

34a

N_Y., supra, at 393, 134 N.E. 187).

Thus, this Court’s Kiryas Joel I] decision establishes an

uncontestable “given” for the review of Chapter 390--that the

core requirement of a constitutional statute is that it must apply

to other municipalities (see, Grumet v. Cuomo, 90 N.Y.2d 57,

75, 659 N.Y.S.2d 173, 681 N.E.2d 340, supra ). This one now

does. Yet, the Majority substitutes a judicial, quantitative

arithmetic analysis for the policy-empirical calculus that was

used by the Legislature and the Governor (see, Wolpoff v.

Cuomo, supra ).

Also uncontested is the fact that it was perfectly proper for

the citizens of Kiryas Joel to take advantage of State

legislation that created the Village that exists today. This is “a

right that New York’s Village Law gives almost any group of

residents who satisfy certain procedural niceties” (see, Board

of Educ. of Kiryas Joel Vil. School Dist. v. Grumet, 512 US.

687, 691, 114 S.Ct. 2481, 129 L.Ed.2d 546, supra ). Indeed, it

probably would have been unconstitutional to deprive these

citizens of their mght to incorporate simply because the

geographic boundaries allowed a Village to be formed

consisting solely of members of the same religious beliefs.

Once again, that very municipality similarly seeks to

secure and take advantage of other generally applicable

legislation. The Majority’s decision today essentially,

functionally and virtually forever forecloses this right for the

citizens of the Village of Kiryas Joel; it deprives them of the

opportunity afforded by Chapter 390 simply because the civil

Village is the first municipal group to utilize the statutory

enablement. Were other municipalities to precede Kiryas Joel

in opting in under this legislation, just as other communities

incorporated themselves as villages prior to Kiryas Joel, the

courts would lack the power under the Establishment Clause

to deny Kiryas Joel the same statutory benefit. It is sadly ironic

35a

that the Legislature’s overture to assist the handicapped

children of this Village, who require special secular education

needs, is again struck down simply because the children

happen to be members of the Satmar Hasidim community

within a duly incorporated civic Village.

C. Legislative History/Origin

The Majority’s references to legislative history and origin

(slip op at 21-24) undercut the tripartite system of governance,

as well as sound constitutional theory. This approach implies

that, because the Legislature has previously made mistakes, it

cannot successfully cure its flaws. Under this novel postulate,

initial legislative missteps will always emerge from buried

stages to haunt legitimate, future efforts.

We respectfully suggest that it is at least equally necessary

for the courts to place “history” and “origin”, by whatever

characterization, in context and to interpret a law as it is

written. Instead, the Majority emphasizes that in its draft

stages, the bill has been referred to as “Kiryas Joel No. 3” (slip

op at 21), as though that title carried a constitutional infirmity,

rather than simply reflecting the current legislative practice of

attaching easily recognizable names to bills for better and

broader understanding.

Here, the statute was, indeed, a “direct response to Kiryas

Joel IT’ (slip op at 21). Considered from a neutral perspective,

we view this fact as supportive, rather than destructive, of the

legislative effort. This law, after all, is the result of a concept

that has thrice received the deliberative action of both Houses

of the State Legislature, two Governors of opposing political

parties and has been shaped by decisions of the highest courts

of this State and of the United States.

Further, if this Court ever thought that the “history” of this

36a

matter would be a perpetual albatross carried through all later

drafts and enactments, then it should not have opened the

window of a possibly acceptable theory of constitutionality

(see, Grumet v. Cuomo, 90 N.Y.2d 57, 75, 659 N.Y.S.2d 173,

681 N.E.2d 340, supra ). Naturally, the Legislature pointedly

and respectfully responded; we believe it did so successfully

and constitutionally.

Ironically, the Majority’s rejection of Chapter 390 fosters a

tautological chase that the more the Legislature tries to

accommodate concerns adjudicated by the Courts, the more

the legislative cause is doomed by its ontology. No matter how

many times the other two Branches of State government try to

eradicate the Judiciary’s perceived and _ delineated

constitutional impediments, the effort loses, rather than gains,

ground.

D. The pre-Aguilar Option

The Majority finally urges that Chapter 390 offends the

neutrality mandated by the First Amendment because, in view

of Agostini, Kiryas Joel may have an alternative means by

which to provide its education services (slip op at 24-

25)--again, an unsupportable “perception of endorsement”

concern (see, supra, at 13-14). This mandate turns the

constitutional analysis upside down. It does not control the

constitutionality of the statute at issue, nor is it appropriate to

this Court’s analysis in this setting. This reliance on an

abstract, premature option is, at best, advisory, and, at worst, it

contradicts the legitimate presumption of constitutionality of

the instant statute and creates an improper judicial balancing

act in scrutinizing the constitutionality of the statute that was

actually enacted (see, supra, Part I). Indeed, the very fact that

the Monroe-Woodbury School District is a party urging the

constitutionality of Chapter 390 more assuredly reflects that

the pre-Aguilar system is not even a realistic option, no less a

37a

pre-judged constitutional one.

This judicial musing is inappropriate. To support its

theory, the Majority weakly relies on rhetoric from the losing

side of the debate in the Legislature. This unlikely source

simply cannot trump the overarching separation-of-powers

presumptions by which this Court must be governed in ruling

on the constitutionality of Chapter 390--the only enactment

and issue before this Court at this time.

Finally, we generally agree with the Majority’s exhortation

that the two sides “make every effort” to reach an accord (slip

op at 25) as that would be a most decorous solution to any

litigation. In view of the history of this case, however, this

proposal is particularly precatory. In the end, the role of this

Court is to decide the case presented and establish the guiding

precedent based on careful, precise constitutional analysis.

V.

The intractable drama of this dispute has a David and

Goliath staging to it-- yet, it is difficult to decide who will be

left standing in the end as the true victor or hero. This

profound conflict represents a third constitutional crossroads

for this Court and a potential fact pattern for a second review

by the Supreme Court of the United States. The realm of

Establishment Clause jurisprudence remains particularly

conflicted as evidenced by this case. Until Agostini, cases

seemed to increase the tension between the Constitution’s

traditional and fundamental guarantees of free exercise of

religion and free association. Much remains unsettled, but, in

one sense, Agostini provides a potent lesson that it is not

un-American or unconstitutional to refuse to be absorbed into

the melting pot.

The civic and legal activity of this Hasidic community has

38a

been challenged through successive litigations for daring to go

so far as to exercise a right to petition government repeatedly

for redress. These citizens simply took their place in the long

line of supplicants walking and working the corridors of power

in the Statehouse. In this respect, they paradoxically

conformed to society’s methods. The core of objection against

this minority community, through this and previous litigation,

is that they have been foo successful in not giving up their

quest to gain the open and official attention of the Executive

and Legislative Branches of government. Their perseverance

and that of the Legislature and Governor are tumed

topsy-turvy into an instrument of invalidation of the

lawmaking product of the other two Branches. This

nullification is unwarranted and persuades us to dissent and

vote to reverse and declare Chapter 390 constitutional.

Order affirmed, with costs.

Chief Judge Kaye and Judges Ciparick and Rosenblatt

concur.

Judge Bellacosa dissents and votes to reverse in an opinion

in which Judges Levine and Wesley concur.

39a

APPENDIX B

LOUIS GRUMET et al., Respondents, v. GEORGE

PATAKI, as

Governor of the State of New York, et al., Appellants.

81319

SUPREME COURT OF NEW YORK, APPELLATE

DIVISION, THIRD

DEPARTMENT

July 9, 1998, Entered

COUNSEL: Dennis C. Vacco, Attorney-General (Julie S.

Mereson of counsel), Albany, for George Pataki and others,

appellants.

George Shebitz & Associates, New York City, and

Miller, Cassidy, Larocca & Lewin LLP (Nathan Lewin of

counsel), Washington, DC, for The Board of Education of the

Kiryas Joel Union Free School District, appellant.

Ingerman Smith LLP (Lawrence W. Reich of counsel),

Northport, for Monroe-Woodbury Central School District,

appellant.

Jay Worona, New York State School Board Association,

Albany, for Louis Grumet and others, respondents.

Marc D. Stern, American Jewish Congress, New York

City, for American Jewish Congress, amicus curiae.

eer

40a

Eric W. Treene, The Becket Fund for Religious

Liberty, Washington, DC, for The Becket Fund for Religious

Liberty, amicus curiae.

Dennis Rapps, The National Jewish Commission on Law

and Public Affairs, New York City, for The National Jewish

Commission on Law and Public Affairs, amicus curiae.

JUDGES: Before: Mikoll, J.P., Mercure, Peters, Spain

and Carpinello, JJ.

OPINION: OPINION AND ORDER

Spain, J.

Appeal from an order of the Supreme Court (Teresi, J.),

entered April 6, 1998 in Albany County, which granted

plaintiffs’ motion for summary judgment and declared the

Laws of 1997 (ch 390) unconstitutional.

The legislation challenged in this action, chapter 390 of

the Laws of 1997, is the most recent in a series of attempts

by the Legislature to create a constitutionally valid

educational program which meets the special education

needs of the disabled students residing in the Village of

Kiryas Joel, Orange County. The Village, which lies entirely

within the boundaries of the Monroe-Woodbury Central

School District, is a community established by members of

the Satmar Hasidic sect. When created, the Village

boundaries were drawn to include only property owned and

inhabited by Satmars, devoutly religious people whose

lifestyle is shaped by their religious beliefs. The facts of this

case have been more fully described in prior State and US

Supreme Court decisions (see e.g., Board of Educ. of Kiryas

Joel Vil. School Dist. v. Grumet, 512 U.S. 687, 129 L. Ed. 2d

4la

546, 114 S. Ct. 2481 [hereinafter Kiryas Joel [|; Grumet v.

Cuomo, 90 N.Y.2d 57, 659 N.Y.S.2d 173, 681 N.E.2d 340

(hereinafter Kiryas Joel II}; Board of Educ. of Monroe-

Woodbury Cent. School Dist. v. Wieder, 72 N.Y.2d 174, 531

N.Y.S.2d 889, 527 N.E.2d 767).

At the core of this continuing controversy is a dispute

over special education services between Monroe- Woodbury

and the residents of the Village, whose children attend

private religious schools within the Village. Because these

parochial schools were not equipped to adequately educate

the handicapped children of the Village, the Satmars initially

relied on Monroe-Woodbury to provide these services and

programs in an annex to one of the religious schools in the

Village. After the US Supreme Court found such programs

unconstitutional in Aguilar v. Felton (473 U.S. 402, 87 L.

Ed. 2d 290, 105 S. Ct. 3232) and Grand Rapids School Dist.

v. Ball (473 U.S. 373, 87 L. Ed. 2d 267, 105 S. Ct. 3248),

Monroe-Woodbury ceased offering on-site instruction.

Thereafter, Monroe-Woodbury provided special education to

the Village’s handicapped children at its public school

buildings located outside the Village. Eventually, most of the

Village parents removed their children from the Monroe-

Woodbury program because of, inter alia, the cultural and

alleged emotional trauma experienced by these special needs

children when exposed to the public school integrated classes

(see, Board of Educ. of Monroe-Woodbury Cent. School

Dist. v. Wieder, supra, at 181).

DS SSeS eee

Ultimately, the Legislature attempted to end this conflict

by enacting chapter 748 of the Laws of 1989 (hereinafter

chapter 748), which provided for the creation of a union free

school district coterminous with the Village, designated as

the Kiryas Joel Village School District (see, L. 1989, ch. 748

[1]). The new school district ran only a special education

program, providing services for approximately 40 disabled

42a

children from the Village and over 150 additional Hasidic

children residing in neighboring districts. All three levels of

New York courts, i.e., Supreme Court (Kahn, J.), this court

and the Court of Appeals, found chapter 748 unconstitutional

(Grumet v. Board of Educ. of Kiryas Joel Vil. School Dist.,

81 N.Y.2d 518, 601 N.Y.S.2d 61, 618 N.E.2d 94, affg 187

A.D.2d 16, affg sub nom. Grumet v. New York State Educ

Dept., 151 Misc. 2d 60, 579 N.Y.S.2d 1004). On appeal, the

US Supreme Court affirmed, ruling that chapter 748 violated

the Establishment Clause of the 1st Amendment to the US

Constitution (see, Kiryas Joel I, supra).

Thereafter, in response to the holding of the US Supreme

Court, the Legislature passed chapter 241 of the Laws of

1994 (hereinafter chapter 241). Chapter 241 listed criteria

related to, inter alia, enrollment and valuation by which

municipalities were allowed to organize their own school

districts (see, Grumet v. Cuomo, 225 A.D.2d 4, 8-9, 647

N.Y.S.2d 565, affd. 90 N.Y.2d 57, 659 N.Y.S.2d 173, 681

N.E.2d 340; see also, Education Law § 1504 [3], as added by

L. 1994, ch. 241 [1]). Notably, chapter 241 was limited in

application to municipalities already in existence (see, Kiryas

Joel II, 90 N.Y.2d at 67). Although Supreme Court (Kahn,

J.) found the new law constitutional, both this court and the

Court of Appeals declared it unconstitutional (see, id., at 68,

affg. 225 A.D.2d 4). The Court of Appeals held that the

Statute’s neutral language could not mask the fact that the

law was so narrow that no other school district in the State

could be established under its criteria (see, 90 N. Y.2d at 69).

In yet another effort to remedy the constitutional flaws

of the prior legislation, the Legislature passed chapter 390 of

the Laws of 1997 (hereinafter chapter 390). Chapter 390 is

similar to its predecessor, chapter 241, but includes certain

changes aimed at broadening its application. Unlike the prior

statute, the new law allows municipalities yet to be formed,

43a

which meet its criteria, to form new school districts and does

not limit its immediate benefits to only one existing

municipality. In August 1997, subsequent to the Governor’s

approval of the new statute, the Kiryas Joel Union Free School

District was created.

Thereafter, claiming status as citizen taxpayers pursuant

to the State Finance Law, plaintiffs commenced this action in

Albany County against the Governor, the Education

Department and its Commissioner, the State Board of

Regents, the Comptroller, the District Superintendent of the

Orange-Ulster BOCES (hereinafter collectively referred to as

the State defendants) the Board of Education of the Kiryas

Joel Union Free School District (hereinafter Kiryas Joel) and

the Board of Education of Monroe-Woodbury. Plaintiffs

challenged the constitutionality of chapter 390 under both

Federal and State Constitutions. In October 1997, Kiryas Joel

and Monroe-Woodbury moved for a change of venue from

Albany County to Orange County. In December 1997,

plaintiffs moved for summary judgment, claiming, inter alia,

that out of 1,545 municipalities State-wide, only two villages

qualified. Supreme Court denied the motion for a change of

venue and, in a separate decision, granted summary

judgment and declared that chapter 390 was unconstitutional.

Kiryas Joel and Monroe-Woodbury appeal the denial of a

change in venue. The State defendants, Kiryas Joel and

Monroe-Woodbury appeal the grant of summary judgment.

We affirm. Initially, we conclude that Supreme Court did

not err in denying the applications for a change of venue. It is

settled law that “where there are conflicting venue provisions

and one or more parties seeks a change of venue, it is given

to the discretion of the court to select the proper venue”

(Matter of Hurst v. Board of Educ. for Ithaca City School

Dist, 242 A.D.2d 130, 132-133, 672 N.Y.S.2d 928; see,

Lawyers’ Fund for Client Protection of State of N.Y. v.

la atacand

44a

Gateway State Bank, 239 A.D.2d 826, 828, 658 N.Y.S.2d

705, lv. dismissed 91 N.Y.2d 848; see also, CPLR 502). In

this case, there are conflicting CPLR provisions. Actions

against school boards shall be brought in the county where

the school district is located (CPLR 504 [2]); however, State

Finance Law § 123-c (1) requires that a citizen taxpayer’s

challenge be brought either where the disbursement of funds

occurred or is likely to occur or where the State official has

his or her principal office. CPLR 509 states that venue,

unless changed, shall be in the county chosen by the plaintiff.

Here, five of the eight named defendants are State agencies

or State officials with principal offices in Albany County,

and plaintiffs, citizen-taxpayers challenging legislation

which provides educational funding to school districts, chose

Albany County. In light of the foregoing, Supreme Court did

not abuse its discretion in denying a change of venue.

Moving next to the merits, we reject defendants’

assertion that chapter 390 is a neutral law which cured the

constitutional deficiencies of chapter 24 and conclude that, as

did its predecessors, the new statute lacks the neutrality

toward religion mandated by the Establishment Clause of the

lst Amendment to the US Constitution. It is well settled that

government action must be neutral and cannot favor one

religion over another nor favor a religious adherent over a

nonadherent (see, Kiryas Joel J, 512 U.S. at 696; Kiryas Joel

II, 90 N.Y.2d at 69; Matter of Griffin v. Coughlin, 88 N.Y.2d

674, 689-691, 649 N.Y.S.2d 903, 673 N.E.2d 98, cert.

denied, 136 L. Ed. 2d 607, US. ___, 1178S. Ct. 681; see

also, US Const Ist, 14th Amends). “Equally well established

is the principle that statutes of general applicability that

extend their benefits without regard to religion honor the

neutrality requirement and are generally beyond

Establishment Clause reproach” (Kiryas Joel IJ, 90 N.Y.2d at

69). In Kiryas Joel II, the Court of Appeals clearly

expressed its disapproval of the fact that chapter 241 was so

45a

narrow that only the Village qualified for its benefits and that

no other group could likely ever qualify (id, at 73). Here, the

record supports the conclusion that the new statute applies to

only two of the State’s 1,545 municipalities.’ Thus, chapter

390 is hardly a “truly religious-neutral law of general

applicability * * * [available to] a broad array of eligible

municipalities” ( id., at 75).

We also reject defendants’ assertion that chapter 390

satisfies the Lemon test (see, Lemon v. Kurtzman, 403 U.S.

602, 612-613, 29 L. Ed. 2d 745, 91 S. Ct. 2105). The second

criterion of the Lemon test, also called the “effect” or the

“endorsement” prong, requires an assessment of the

“character of the institutions benefited” (Agostini v. Felton,

138 L. Ed. 2d 391, 521 U.S. 203, ___—, 117 S. Ct. 1997, 2015;

see, Lemon v. Kurtzman, supra, at 615). Under this prong, a

statute will not pass Establishment Clause scrutiny if its

“primary effect” is to advance or promote religion (see,

Lemon v. Kurtzman, supra, at 612). A reviewing court must

look at the context of the state action in assessing ‘viucther it

is a government endorsement of religion (see, Kiryas Joel I,

512 U.S. at 699; Kiryas Joel II, 90 N.Y.2d at 75).

In the instant case, not only does the new statute apply to

too few existing municipalities, its application to other

municipalities in the future is speculative. Despite the

provisions which extend the benefits of the statute to existing

municipalities for which conditions may change in the future

' We find merit in plaintiffs’ argument that cities do not qualify for

the benefits of chapter 390, a fact supported by one of defendants experts.

Chapter 390 specifically states that it applies to “any municipality

situated wholly within one central or union free school district” (L 1997,

ch 390). Significantly, under the Education Law, school districts in cities

with a population of less than 125,000 are small city school districts

(Education Law § 2 [16]) and not central or union free districts.

46a

and to new municipalities yet to be formed, the “theoretical

possibility” that other municipalities may qualify under the

new statute in the future is, in our view, remote at best (see,

Kiryas Joel II, 90 N.Y.2d at 71). As to context, a review of

the history of this legislation leads us to conclude that

chapter 390, as its predecessors, clearly provides an

impermissible preference to the Village in response to the

Satmars’ desire to provide their handicapped children with

special education services in an _ exclusive Satmar

environment. > Chapter 390, despite its facial neutrality,

violates the second prong of the Lemon test as its primary

effect endorses the Satmars’ religious beliefs. °

It is significant that in a recent decision, Agostini v.

Felton, (supra), the US Supreme Court provides a

constitutionally viable option for the defendants in this

action. Agostini overruled Aguilar v. Felton (473 U.S. 402,

87 L. Ed. 2d 290, 105 S. Ct. 3232, supra), the decision which

caused Monroe-Woodbury to cease its on-site instruction of

the special needs children of the Village. Consequently,

Monroe-Woodbury, while not required to do so (see, Board

of Educ. of Monroe-Woodbury Cent. School Dist. v. Wieder,

72 N.Y.2d 174, 189-190, 531 N.Y.S.2d 889, 527 N.E.2d 767,

supra), is no longer precluded from simply going into the

parochial schools in the Village and setting up satellite

special education programs as it did prior to Aguliar v.

* Notably, the new law is inconsistent with the expressed public policy

in this State which favors consolidating school districts (especially small

self-contained school districts), not creating new ones (see, e.g., Education

Law § 314).

> Supporting the conclusion that the new statute was intended to

specifically benefit the Village is that the Assembly itself refers to chapter

390 as the “Kiryas Joel” bill (see, New York State Assembly’s Session

Highlights for 1997).

47a

Felton (supra). Moreover, the fact that the underlying reason

for the creation of the challenged school districts has now

been eliminated also supports plaintiffs’ assertion that

chapter 390 should be perceived as yet another improper

endorsement by the Legislature in providing the Satmar

community the continued existence of a publicly funded

exclusive environment in which to educate their children in

accordance with their religious preferences (see, Kiryas Joel

I, 512 U.S. at 699; Kiryas Joel I, 90 N.Y.2d at 75; see also,

Lynch v. Donnelly, 465 U.S. 668, 690, 79 L. Ed. 2d 604, 104

S. Ct. 1355 [O’Connor, J., concurring]).

In summary, although the holdings in both Kiryas Joel |

and Kiryas Joel I] suggest that legislation achieving an

“acceptable result” might be properly crafted, each of those

cases concludes that such a school district must still be

formed pursuant to a constitutionally permissible generally

applicable law. In our view, chapter 390 does not encompass

a sufficient number of municipalities to constitute the “broad

array” suggested in Kiryas Joel Il (supra); \ike its

predecessors, it is an “impermissible governmental

endorsement of this religious community” (90 N.Y.2d at 64).

In view of the foregoing conclusions, we need not

address plaintiffs’ remaining contentions.

Accordingly, we affirm Supreme Court’s grant of

summary judgment in favor of plaintiffs.

ORDERED that the order is affirmed, without costs.

Mikoll, J.P., Mercure, Peters and Carpinello, JJ., concur.

48a

APPENDIX C

DECISION AND ORDER APPEALED FROM

STATE OF NEW YORK

SUPREME COURT COUNTY OF ALBANY

LOUIS GRUMET AND CAROLINE C. SHIPLEY,

Plaintiffs,

-against- DECISION and ORDER

INDEX NO. 5648-97

RJI NO. 0197051323

GEORGE PATAKI, as Governor of the State

of New York; THE NEW YORK STATE EDUCATION

DEPARTMENT; RICHARD P. MILLS, as Commissioner

of the New York Education Department; THE NEW

YORK STATE BOARD OF REGENTS; H. CARL

MCCALL, as New York State Comptroller, THE BOARD

OF EDUCATION OF THE KIRYAS JOEL UNION FREE

SCHOOL DISTRICT; THE BOARD OF EDUCATION OF

THE MONROE-WOODBURY CENTRAL SCHOOL

DISTRICT; and DR. WILLIAM J. BASSETT, JR.., as

District Superintendent of the Orange-Ulster BOCES,

Defendants.

Supreme Court Albany County All Purpose Term,

January 30, 1998

Assigned to Justice Joseph C. Teresi

APPEARANCES:

Jay Worona, Esq.

Kate Gaffney, Esq.

Attorneys for Plaintiffs

New York State School Beards Association, Inc.

119 Washington Avenue

Albany, NY 12210

Mary Ellen Clerkin, Esq.

Assistant Attorney General

Attomey for State Defendants

Department of Law

New York State Capitol

Albany, NY 12224

Lawrence W. Reich, Esq.

Ingerman, Smith, LLP

Attorneys for Defendant Monroe-Woodbury

Central School District

167 Main Street

Northport, NY 11768

Nathan Lewin, Esq.

Miller, Cassidy, Larroca & Lewin, LLP

Attorneys for Defendant Kiryas Joel

Union Free School District

2555 M Street, NW

Washington, D.C. 20037

George Shebitz, Esq.

George Shebitz & Associates, P.C.

Attorneys for Defendant Kiryas Joel

Union Free School District

1370 Avenue of the Americas, 9" Floor

New York, NY 10019

50a

TERESI, J.:

Plaintiffs seek an order pursuant to CPLR 3212 granting

summary judgment permanently restraining and enjoining

defendants from taking any and all present future action or

expending any State monies or resources for the purpose of

implementing Chapter 390 of the Laws of 1997; that the

defendant be ordered to take any and all action necessary to

immediately close the Kiryas Joel Union Free School District

and cease all operation of said district; that defendant

Monroe-Woodbury Central School District take any and all

action to provide special education services to the residents

- of the Village of Kiryas Joel, in accordance with Federal and

State law; and for such other and further relief as the Court

may deem just and proper.

Defendants oppose the motion.

This case results from the third attempt of the Legislature

of this State to ignore the rulings from Courts at every level

and to impermissibly endorse the Satmar community of

Kiryas Joel. The relevant history of this case is fully

recounted in Grumet v. Board of Educ., 81 NY2d 518, Board

of Educ v. Weides, 72 NY2d 174 and Grumet v. Cuomo, 90

NY2d 57. The Court of Appeals in Grumet v. Cuomo, 90

NY2d 57 (known as Kiryas Joel II) rebuffed the

Legislature’s second attempt to create this impermissible

union of Church and State and the Legislature has now

attempted this again. Chapter 390 of the Laws of 1997

purports to cure the errors in Chapter 241 (Chapter 390

predecessor struck down in Grumet v. Cuomo, 90 NY2d 57)

by removing the objectionable factors specified in Kiryas

Joel Il.

Sla

In Kiryas Joel I] the Court of Appeals stated that:

“In reviewing a law to determine whether it is truly

religion-neutral and generally applicable, however,

“[flacial neutrality is not determinative. The Free

Exercise Clause, like the Establishment Clause,

extends beyond facial discrimination” (Church of

Lukumi Babalu Aue v. Hialeah, 508 US 520, 534

[emphasis added] {citing Gillette v. United States, 401

US 437, 452 (“the Establishment Clause forbids

subtle departures from neutrality”)]. Consequently,

“[o]Jofficial action that targets religious conduct for

distinctive treatment,” whether that treatment is

adverse or favorable “cannot be shielded by mere

compliance with the requirement of facial neutrality”

(id., at 534). Moreover, just as “[t]he provision of

benefits to [a] broad * * * spectrum of groups is an

important index of secular effect” (Widmar v. Vincent,

454 US 263, 274, see also, Westside Community Bd.

of Educ. v. Mergens, 496 US 226, 248 [plurality opn]

[samel], the corollary of this proposition is also true;

The provision of a governmental benefit to a

restricted class, when that class is formed along

religious lines, is a telling index of non-neutral

sectarian effect (see, Rosenberger v. Rector & Visitors

of Univ. of Va., supra, 515 US, at , 115 S$ Ct. at 2525

{[O’Connor, J. concurring] [“Neutrality, in both form

and effect, is one hallmark of the Establishment

Clause”] [emphasis added]: Walz v. Tax Commn.,

supra, 397 US, at 696 [Harlan, J., concurring] [“The

Court must survey meticulously the circumstances of

governmental categories to eliminate * * * religious

garrymanders]). Consistent with these principles, the

Supreme Court in Kiryas Joel J ruled the Chapter 748

violated the neutrality principle by solely benefiting a

religious group, even though the law employed

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facially religion-neutral terms to create a school

district coterminous with the duly incorporated

Village of Kiryas Joel (512 US, at 702-705, supra).”

Kiryas Joel II at 70.

The Court went on to quote that the Supreme Court in

Capital Sq. Review & Advisory Bd v. Pinette, supra, 515 US

at, 115 S Ctat 2454:

“The Establishment Clause forbids a State from

hiding behind the application of formally neutral

criteria and remaining studiously oblivious to the

effects of its actions”]). Given the unrebutted

record.”

Defendants urge that the fact that Chapter 390 of the

Laws of 1997 cures the infirmities of Chapter 241 by

eliminating the two (2) qualifications found offensive in

Grume? v. Cuomo, 90 NY2d 57 at 72. However, when

applying the “Lemon” test as found in Lemon v. Kurtzman,

403 US 602, the Court focused on the second prong,

identifving the central question to be answered as whether:

“The challenged governmental action is sufficiently

likely to be perceived by adherents of the controlling

denominations as an endorsement, and by the

nonadherents as a disapproval, of their individual

religious choices” (Grand Rapids School Dist. v. Ball,

473 US 373, 390, supra). This concept of

“endorsement” is alternatively expressed as

“favoritism,” “promotion,” or “preference” (see,

Allegheny County ¥. Greater Pittsburgh Am. Civ.

Liberties Union, 492 US 573, 593 [citing cases]), but

the principle is constant: “whatever else the

Establishment Clause may mean * * , it certainly

means at the very least that government may not

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demonstrate a preference for one particular sect or

creed” (id., at 605). Kiryas Joel II at 74.

The Court went on to state:

“Two aspects of the endorsement inquiry are a

particularly relevant in this case. First, as is evident

from the very terms of Lemon's second prong, the

actual effect of the challenged State actio, and not

merely its stated purpose, is a proper subject of

Establishment Clause scrutiny (see, id., at 592 [“we

have paid particularly close attention to whether the

challenged governmental practice either has the

purpose of effect of ‘endorsing’ religion”] [emphasis

added]). “[E]ven when the challenged statute appears

to be neutral on its fact,” the Supreme Court has

“always been careful to ensure that” the challenged

State action “does not have the primary effect of

advancing religion” (Bowen v. Kendrick, 487 US 589,

609, supra; see, Grand Rapids School Dist. v. Ball,

supra, 473 US, at 389-392 [invalidating State-funded

educational program because of its “endorsement”

effect, where 40 of the 41 beneficiaries were religious

schools]; cf, Texas Monthly v. Bullock, 489 US 1, 17

{plurality opn] [invalidating tax exemption limited to

religious periodicals because it “effectively endorses

religious belief”]).*

In addition, the endorsement inquiry is not

conducted by analyzing the challenged governmental

action in isolation. Rather, a court must take into

account the context in which the State has acted.

“Context determines whether particular governmental

action is likely to be perceived as an endorsement of

religion” (New York State School Bds. Assn., v. Sobol,

79 NY2d 333, 339, cert. denied 506 US 909; Grumet

v. Board of Educ., 81 NY2d 518, 528, affd 512 US

54a

687; supra; see, Allegheny County v. Greater

Pittsburgh Am. Civ. Liberties Union, supra, 492 US,

at 598-60] [analyzing physical and temporal context

of creche display]; Lynch v. Donnelly, 465 US 668,

679 [“the focus of our inquiry must be on the creche

in the context of the Christmas season”]; cf, Kiryas

Joel I, supra, 512 US, at 699 [plurality opn]

[“analysis does not end with the text of the statute at

issue.” but must take into account its “context’”)).

Kiryas Joel II at 74, 75.

The Court of Appeals then considered the context of

Chapter 241 and found:

“Applying the foregoing principles to this case, we

conclude that the enactment of chapter 241 would be

perceived as an act of governmental favor for the sole

benefit of the Satmar sect. Chapter 241 was enacted

into law after the Supreme Court issued its decision in

Kiryas Joel | striking down Chapter 748 as an act of

legislative favoritism. Defendants acknowledge that

Chapter 241 was adopted in direct response to the

Kiryas Joel I ruling to provide the Village of Kiryas

Joel with an alternative mechanism to secure its own

school district. Indeed, Chapter 279, a companion

statute to Chapter 241, expressly authorizes the

district’s continued operation and _ specifically

contemplates that a Kiryas Joel School District will

be reconstituted pursuant to Education Law article

31.” Kiryas Joel I] at 75.

Applying these sound principles to this case, results in

the same conclusion. There is no doubt that Chapter 390 was

enacted into law as a response to the Court of Appeals

striking down Chapter 241, as an act of legislative

favoritism. A cursory review of the legislative debates

55a

confirms that primary justification for the passage of Chapter

390 is the resurrection of the Kiryas Joel School District. A

review of this record and the statistics placed before the

Court lead to the conclusion that Chapter 390 as applied only

definitively applies to two municipalities. | Defendants

protestations of possible future municipalities qualifying at

some later point was addressed and rejected in Kiryas Joel I]

at 71. This Court rejects the creative boot-strap reasoning

that the broadening of Chapter 241 by Chapter 390 by adding

one municipality does not qualify as the “broad array of

eligible municipalities”, envisioned by the Court of Appeals

in Kiryas Joel II at 75.

This Court finds that Chapter 390 violates the

Establishment Clause of the First Amendment of the United

States Constitution. Although, neutral and generally

applicable on its face, there can be no doubt that Chapter 390

is a clear, unequivocal, but impermissible favoritism,

promotion, preference and endorsement by the State of the

Satmar community of Kiryas Joel.

As previously held by the Court of Appeals:

“.. context determines whether particular governmental

action is likely to be perceived as an endorsement of religion”.

(Kiryas Joel II at 75) Viewed in the context of its history and

effect, the inappropriate endorsement of a specific religion is

the prominent message evoked by Chapter 390. A full review

of this record indicates that the purpose of Chapter 390 was to

confer a benefit on the religious community of Kiryas Joel and

to the cost of more then three million ($3,000,00Q) dollars,

with the New York Taxpayers assuming those costs.

Plaintiff's motion for summary judgment is granted.

Chapter 390 is found to be unconstitutional and defendants

are permanently enjoined and restrained from taking any and

all present, future action or expending any State monies or

56a

resources for the purpose of implementing Chapter 390 of

the Laws of 1997. The defendants are ordered to take any

and all action necessary to immediately close the Kiryas Joel

Union Free School District and cease all operation of said

district. The defendant Monroe-Woodbury Central School

District is ordered to take any and all action to provide

special education services to the residents of the Village of

Kiryas Joel, in accordance with Federal and State law.

All papers, including this Decision and Order, are being

returned to the attorneys for the plaintiffs. The signing of

this Decision and Order shall not constitute entry or filing

under CPLR 2220. Counsel are not relieved from the

applicable provisions of that section respecting filing, entry

and notice of entry.

SO ORDERED!

Dated: Albany, New York

April 2, 1998

/s/

Joseph C. Teresi, J.S.C.

PAPERS CONSIDERED:

(1) Notice of Motion dated December 19, 1997.

(2) Affidavit in Support of Motion for Summary

Judgment of Jay Worona, Esq. dated December 19,

1997, with Attached Exhibits A — F.

(3) Affidavit in Support of Motion for Summary

Judgment of Daniel Kinley dated December 17, 1997,

with Attached Exhibits A — H.

(4)

(5)

(6)

(7)

(8)

(9)

(10)

(11)

(12)

(13)

(14)

(15)

(16)

57a

Summons dated September 11, 1997 with Complaint

dated September 9, 1997, with Attached Exhibits A —

HH.

Affidavit in Support of Motion for Summary

Judgment of Louis Grumet dated December 18, 1997,

with Attached Exhibits A and B.

Affidavit in Support of Motion for Summary

Judgment of J.Francis O’Connor dated December 16,

1997, with Attached Exhibit A.

Affidavit in Support of Motion for Summary

Judgment of Caroline C. Shipley, dated December

16, 1997.

Affirmation in Opposition to Plaintiffs’ Motion for

Summary Judgment by Nathan Lewin, Esq. dated

January 16, 1998.

Affidavit of Edward C. Farrell dated January 13,

1998.

Affirmation of Donald G. Nichol, Esq. dated January

13, 1998.

Affidavit in Opposition to Plaintiffs’ Motion for

Summary Judgment of Basil A. Imburgia dated

January 15, 1998, with Attached Exhibits 1 — 11 and

A-H.

Affirmation of Mary Ellen Clerkin, A.A.G. dated

January 16, 1998.

Affidavit of Lawrence W. Reich, Esq. dated January

8, 1998, with Attached Exhibits A- D.

Reply Affidavit of J.Francis O’Connor dated January

27, 1998.

Reply Affidavit of Daniel Kinley dated January 30,

1998, with Attached Exhibit A.

Reply Affidavit of Jay Worona, Esq. dated January

30, 1998, with Attached Exhibits A — C.