Kiryas Joel and Grument and Satmar Hasidim and Hungary and Souter and Scalia and Lemon test and O'Connor

In this Establishment Clause case, the Court held (6-3, opinion by Justice Souter) that provision of public school special education teachers for the Kiryas Joel School District, consisting as it did of children only of Hasidic Jews (many of whom belonged to the Satmar community), violated the Establishment Clause. While the School District was itself a creation of New York law and was a public school district, the only residents in the Village of Kiryas Joel were members of the Satmar Hasidic community and the only students taking advantage of the special education classes were Satmar students as well as some other Hasidic Jewish children from nearby communities. Because of the unusual facts of this case there is the possibility that its holding will have no resonance beyond this case; however, when one considers the scope of Establishment Clause cases, it is unwise to make that prediction.

Relevant Facts

Kiryas Joel is a village of 8,500 inhabitants and was carved out of the town of Monroe, NY in the mid-1970s. Its residents all belong to the Satmar Hasidic sect, which takes its name from a town near the Hungarian/Romanian border. When the village incorporated in 1977 by seceding from Monroe, it did so only after arduous and contentions discussions with neighbors and the town. Most of the Kiryas Joel young people attend private religous schools. Some, however, were disabled, and so public school special education teachers were provided in the religious schools to educate these children. However, in the wake of the 1985 Court decisions in Grand Rapids and Aguilar, the Monroe district discontinued this arrangement. Then, these students were required to attend public schools outside of the district for special education services, and it resulted in "panic, fear and trauma" for the children. As a result, the New York State Legislature passed a statute creating the Village of Kiryat Joel School District whose lines were coterminus with the boundaries of the Village. Thus, public funds could be given to the "secular" school district by the State to educate the students with special education needs.

The litigation commenced when respondents brought an action against the State Education Department and various state officials, challenging the legislative action in creating the Kiryas Joel School District as an unconstitutional establishment of religion. All three lower courts agreed with respondents, using the Lemon test to disallow the practice because the statute's primary effect was an impermissible advancement of religious belief.

The Court's Holding

Instead of using the Lemon tests to analyze the facts, Justice Souter settled on Larkin v. Grendel's Den, a 1982 case striking down a Massachusetts statute granting religious bodies veto power over applications for liquor licenses. Larkin was crucial for the analysis because it stood for the proposition that "a State may not delegate its civic authority to a group chosen according to a religious criterion." In fact in this case the State of New York "manipulat[ed] the franchise...and limited it to Satmars, giving the sect exclusive control of the political subdivision." So, he concluded, "in the circumstances of this case, the difference between thus vesting state power in the members of a religious group [the citizens of Kiryas Joel] instead of the officers of its sectarian organization [such as the church in Larkin] is one of form, not substance." Where 'fusion' of state and church functions was at issue, the difference lay in the distinction between a government's "purposeful delegation on the basis of religion" and "a delegation on principles neutral to religion," that is, to individuals whose religous identities are incidental to their receipt of civic authority." Here there was a purposeful delegation on the basis of religion. There was an "adjustment to the Satmars' religiously grounded preferences that our cases do not countenance."

Concurrences

The most significant of the concurrences was Justice O'Connor's. She patiently told the story of a three-fold accommodation, briefly described above, given the Satmars by the State or the town of Monroe, all based on the unique religious heritage of the group. This amounted to an unequal treatment of people based on the "God or gods they worship, or don't worship." The Court's Establishment Clause decisions emphasized that equal treatment is the key: one's religion ought not affect one's legal rights or duties or benefits. In this case, rather than being a general accommodation of religion, the statute "singles out a particular religious group for favorable treatment."

At least as important in her concurrence were her musings on the continuing importance of Lemon in the wake of Justice Souter's ignoring of it in his opinion. She concluded that with the development of the case law perhaps there was no continuing need for a "Grand Unified Theory" to resolve all Establishment Clause cases; perhaps Lemon, therefore, had outlived its usefulness as a basis for all decisions. She suggested some ways that sub-categories of Establishment Clause cases could be arranged.

Justice Kennedy, a surprising concurrer, wrote separately to say that the would advance a narrower theory on which to affirm the lower courts: that "the real vice of the school district....is that New York created it by drawing political boundaries on the basis of religion."

Scalia, Rehnquist and Thomas in Dissent

Justice Scalia authored this long dissent, in which he argued that the action of the New York Legislature constituted an "admirabl[e" American accommodation "of the religious practices (or more precisely, cultural peculiarities) of a tiny minority sect." Whereas Justice Souter wanted to collapse the distinction between Larkin and this case, Justice Scalia would magnify the differences.

In fact, the school district was a public school district where the "only thing distinctive about the school is that all the students share the same religion." His usual verbiage ("startling implications" of the case; "abandon[ing text and history as guides;" "the Court's decision today is astounding") flows strongly, but it seems ironic that the one who castigated the majority most roundly for abandoning history showed no interest in raising the question whether a historical practice might indeed have legal implications. It is that difficult issue that decided the case.