In another test of the line separating church and state, the Supreme Court said Monday that it will rule on whether New York officials can create a small, separate school district to accommodate the needs of disabled Hasidic children.
A ruling in the case, expected in the spring, will give the high court a chance, if it chooses, to revise its strict approach to separation of church and state and give public officials more leeway to take steps that benefit religion indirectly.
But such an outcome would likely be a modest change that reflects the current makeup of the court and permits limited efforts to accommodate the needs of a minority religious sect.
In recent years, the court’s leading conservatives have pressed to relax the strict separation of church and state but they have failed to muster a clear majority.
The dispute involving the Hasidic children arose because of the federal law requiring public school districts to provide special education for all the disabled children within their borders.
But the Satmar Hasidic parents in the village of Kiryas Joel, about 40 miles from New York City, refused to send their children to classrooms with non-Hasidic pupils. Officials of the Monroe-Woodbury Central School District refused to provide the special education at any site other than in a public school building.
As a compromise, the New York Legislature in 1989 agreed to create a tiny district in the Hasidic village with one public school that would serve the 200 disabled and learning impaired children there. The district is governed by an elected board, all of whom are Hasidics, but its principal is not Hasidic and no religion is taught.
The Hasidic parents educate the rest of their children in private religious schools.
Several taxpayers challenged the arrangement for the disabled children as a violation of the First Amendment’s ban on “an establishment of religion.” In July, the New York court of appeals agreed with them on a 4-2 vote.
“We conclude that this symbolic union of church and state effected by the establishment of the Kiryas Joel village school district . . . is sufficiently likely to be perceived by the Satmar Hasidim as an endorsement of their religious choices or by non-adherents as a disapproval of their individual religious choices,” the state court said.
It also concluded that the state’s action was unconstitutional because it had the “primary effect” of advancing religion.
These words were drawn from the 1971 case of Lemon vs. Kurtzman, in which the Supreme Court set out a formula for deciding when public aid to religion becomes unconstitutional.
Under that approach, a public program may not have a “primary effect (that) advances or inhibits religion” nor may it “foster an excessive entanglement” between church and state.
For the last decade, the justices regularly have criticized this so-called “Lemon test” as confusing but they have not agreed on a new approach.
In separate appeals to the high court, lawyers for New York state, the Kiryas Joel village school board and the Monroe-Woodbury central district said that the state court ruling was wrong. They said that the high court should either permit the creation of the separate district on the grounds that it did not have the “primary effect” of advancing religion, or overrule this part of the Lemon test.
“It is essential for this court to clarify that Lemon . . . does not make every accommodation to religious groups an endorsement or promotion of their religion,” said New York Atty. Gen. Robert Abrams.
The First Amendment says that the government may not make laws “respecting an establishment of religion or prohibiting the free exercise thereof” and legal experts recently have urged the justices to consider the two clauses together.
University of Chicago law professor Michael McConnell has argued that some rulings barring any public benefits to religion have the effect of undercutting the “free exercise” of religion.
“The problem with the Lemon test is that it can lead to the persecution of a minority religion,” McConnell said. “I hope they are ready to confront that problem in this case.”
UC Berkeley law professor Jesse Choper, another religion law expert, said that it is “very unlikely” the court will make a dramatic change in the law this term.
Earlier this year, conservatives on the court suffered a blow when Justice Byron R. White retired. Where White voted regularly to permit more public aid and acknowledgment of religion, Justice Ruth Bader Ginsburg, his replacement, is considered likely to vote with those who favor a strict separation between church and state.
For now, neither bloc appears to wield a clear majority, increasing the chance that the court will take only a tentative step this term to clarify the law on religion.
Arguments in the case (Board of Education of Kiryas Joel vs. Grumet, 93-517) will take place early next year, with a written ruling expected by late June.
In other actions, the court:
* Left undisturbed a $4.3-million jury verdict won by a New York City subway mugger, who was paralyzed when a transit system police officer shot him as he ran away from the scene of the crime. A jury ruled that the officer used excessive force to stop the fleeing suspect, who was not armed. (New York City Transit Authority vs. McCummings, 93-400.)
* Agreed to rule on a potentially far-reaching property rights dispute from Oregon that stems from a 1987 ruling by the high court.
In the earlier case, involving a beachfront house in Ventura, the high court said that it would not let public officials use “extortion” and demand that property owners give up a piece of the land as the price of obtaining a building permit. Public officials are still permitted to extract reasonable development conditions from property owners, but the justices have not yet spelled out a clear rule that separates such conditions from an unreasonable “taking” of private property, which is forbidden by the Constitution.
Florence Dolan, the owner of a plumbing store in Tigard, Ore., is challenging a city demand that she give up 10% of her land for a bike path as a condition for enlarging her store. In her appeal in the case (Dolan vs. Tigard, 93-518), the woman’s lawyers said that--before public officials can demand such conditions--they must show an essential link between the development and an adverse effect on the public.
* Let stand a ruling that Colorado State University violated federal bias laws when it dropped its women’s softball team (Colorado State vs. Roberts, 93-559). The ruling from a U.S. appeals court in Denver effectively puts teeth in Title IX, the 1972 federal law that demands equal treatment for women in education.
* Refused to hear a challenge to the constitutionality of a Georgia law that offers full death benefits to the families of workers from the United States and Canada but not Mexico. Because of that law, the family of Jose Morales, a Mexican citizen, did not receive full benefits after he died in an Atlanta construction accident in 1990.
The justices may well have rejected the case (Morales vs. Barger-Wagener Construction, 93-432) for strictly technical reasons. Lawyers said that the statute was not challenged as unconstitutional in the Georgia courts, which bars the raising of that claim in the Supreme Court.
Religion and the High Court
Disputes over government’s relationship with religion have kept the Supreme Court and the nation’s lower courts busy for decades. Here are some of them:
* Are officially sponsored prayers allowed at public school graduation ceremonies? The high court in 1992 struck down commencement prayers led by clergy members but last June let stand a ruling that allows student-led prayers at such ceremonies.
* May local governments sponsor Christmas Nativity scenes? In a series of rulings, the court has allowed such sponsorship if the scenes depicting the birth of Jesus Christ are accompanied by other, non-religious symbols of the holiday season.
* Should public school districts provide sign-language interpreters for deaf students in religious schools? The court allowed such public funding earlier this year.
* Do religious groups have a constitutional right to sacrifice animals in worship services? The court said yes last June as it struck down a Florida community’s ban on such rituals.
* Must religious groups be allowed to use public schools after hours if non-religious groups are given such permission? The court last June struck down a New York school district’s policy that excluded religious activities.
Source: Associated Press