# Appendix — Pataki v. Grumet

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0913%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 946

## Text

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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

52a

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

53a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0913%3A2. Public record. Not legal advice.