To the general applause of pundits and civil liberties groups, the Supreme Court last week struck down a New York law allowing a village made up almost entirely of Satmar Hasidim to operate a public school system for the benefit of their handicapped children, sparing them the need to attend a more distant school where the other kids made fun of them for their Yiddish language, odd clothes and hairstyle, and peculiar customs. The separation of church and state is alive and well!
The Kiryas Joel decision is like one of those puzzles in a children’s magazine: “What Is Wrong With This Picture?” Usually the cat has five legs or the fireman is climbing upside down on the ladder. Here, the establishment clause of the Constitution, which has the purpose of protecting religious minorities from enforced conformity to majoritarian norms, has been used to prevent the state from respecting the special needs of a small religious sect, and has put the Satmar Hasidim at the mercy of their unsympathetic neighbors. What happened?
Two decades ago, about 8,000 members of the Satmar sect moved to a then-uninhabited part of Orange County, New York, and formed a village called Kiryas Joel. Like most Orthodox Jews, the people of Kiryas Joel educate their children in religious schools, or “yeshivas,” while paying property taxes to support the secular schools used by the majority of their fellow citizens.
Under both state and federal law, all handicapped children-whether they go to public or private school-are entitled to educational assistance appropriate to their special needs. For years, this assistance was provided by public school employees on the premises of the religious schools in Kiryas Joel. In 1985, however, the Supreme Court held that service to be unconstitutional.
The Satmar handicapped children then had to travel to the closest public school. Predictably, this was a disaster. The children, many of them already suffering from emotional disturbance and insecurity, experienced, “panic, fear and trauma,” and all but one of the Satmar parents removed their children from this unsatisfactory placement.
The Satmar parents requested the school district to provide special education at a “neutral site” in the village, as would have been permitted under the law; but the district refused. The parents sought relief in the state courts, but the court held that the district had discretion to decide how and where to provide the special education.
So the Satmar community turned to the legislature for help. Under the state constitution, the legislature could not tell the school district how to exercise its educational functions. But it could determine the boundaries of the district. And so the legislature voted to carve out a new school district coterminous with the boundaries of the village of Kiryas Joel. This enabled the people of Kiryas Joel to establish a public school in the village that would provide appropriate education for their handicapped children.
It seemed the perfect solution. No one else was affected. Even the school district was pleased, for it was freed of responsibility to deal with people whose customs it did not understand and who seemed obstreperous and difficult.
Why, then, did the Supreme Court hold it unconstitutional? It gave three reasons, none of them very persuasive.
First, the court said this district violates the First Amendment, “by delegating the State’s discretionary authority over public schools to a group defined by its character as a religious community.”
But this cannot be right. In the same opinion, the court stated that there is no constitutional problem with the existence of the village of Kiryas Joel, which is “defined by” the same boundaries and which exercises far more discretionary governmental authority than the school district does. And as the court admits, there are scores of other self-governing communities around the country no less “defined” by their religious character. If people have the freedom to move freely, establish communities and govern themselves, there will be governmental units where the electorate is almost entirely of a particular religion. This is not “establishment.” This is religious pluralism.
But the court explains that the problem is not that the electorate making up the Kiryas Joel school district is all of one religion. The problem is that the legislature created this all-Satmar district deliberately. But again this cannot be right. The court admits that the legislative purpose of accommodating the needs of a religious minority is legitimate. But if the purpose is legitimate, and the effect is legitimate, what is the problem?
The court’s second answer is less mysterious but more troubling. The problem is that the legislature may have exercised favoritism toward the Satmar Hasidim. The court lacked “assurance that the next similarly situated group seeking a school district of its own will receive one.”
This portion of the opinion has the virtue of appealing to a genuine constitutional principle: that of equal treatment of all religious groups. But the application is illogical. Because the circumstances of the Satmar Hasidim are unique, no other group has presented an analogous problem. Surely the better course-as Justice Kennedy insisted in this concurrence-is to wait until the legislature fails to treat another group in a comparable way before striking down this law.
If the court is serious about this line of reasoning, then any “case-specific” accommodation to the needs of a particular religious minority is unconstitutional. That has never been the law.
The third reason for striking down the law in the Kiryas Joel case is the most distressing. According to three of the Justices-Stevens, Blackmun, and Ginsburg-New York behaved unconstitutionally when it affirmatively “support(ed) a religious sect’s interests in segregating itself and preventing its children from associating with their neighbors.”
This is an attack on a precious aspect of religious freedom for religious minorities. For many members of minority religions, to be able to assimilate into the wider culture is a great blessing. But for others-such as the Amish or the Satmar Hasidim-assimilation would destroy their religious way of life.
It is hard to see whose rights are protected by this decision. But the victims are plain to see. The handicapped children of Kiryas Joel will be deprived of the special educational assistance to which they are entitled by law-or forced to accept it under circumstances that are pedagogically and religiously unacceptable. As the court noted, there are other ways to accommodate the Satmar children’s needs, which would not involve creating a separate school district. But this is cold comfort, since the school district with power over their lives refuses to help. Thanks to the Supreme Court, this religious minority is again at the mercy of an unfriendly majority.
