Board of Education of Kiryas Joel Village School District v. Grumet: a Missed Opportunity for the Supreme Court to Clarify Establishment Clause Analysis - John Kevin Moore

• Citation: Vol. 46 No. 3
• Publication year: 1995

Casenotes

Board of Education ofKiryas Joel Village School District v. Grumet: A Missed Opportunity for the Supreme Court to Clarify Establishment Clause Analysis

The village of Kiryas Joel in Orange County, New York is populated entirely by practitioners of Satmar Hasidim, a strict form of Judaism.¹ The Satmar Hasidics, incorporated the village in 1977, and the boundaries included only the 320 acres owned and inhabited by Satmar Hasidics.² Two private, gender-segregated religious schools provided the education for most of the village's children.³ However, these schools were not able to offer special services to handicapped children⁴ who are entitled under state and federal law to special education services even when enrolled in private schools.⁵ Thus, in 1984 the Monroe-Woodbury Central School District began providing special services for the handicapped children of Kiryas Joel at an annex to one of the private, religious schools.⁶ Monroe-Woodbury ended this arrangement one year later, however, in response to two United States Supreme Court decisions.⁷ The handicapped children were thus forced to attend public schools outside the village to receive special education services. Parents of most of these children withdrew them from the public schools because of the "panic, fear and trauma [the children] suffered in leaving their own community and being with people whose ways were so different."⁸ By 1989, only one child from Kiryas Joel was attending public schools; the other handicapped children either received privately funded services or went without.⁹ In the wake of this problem, the New York Legislature passed a statute creating a separate school district for the village of Kiryas Joel.¹⁰ The Kiryas Joel Village School District operated only a special education program for handicapped children. The other children stayed in their respective parochial schools, relying on the new school district for transportation, remedial education, and health and welfare services.¹¹ In response to the enactment of Chapter 748, Louis Grumet and others brought an action against the State Education Department and various state officials challenging the statute as an unconstitutional establishment of religion.¹² The State Supreme Court for Albany County allowed the Kiryas Joel Village School District and Monroe-Woodbury to intervene as party defendants and accepted the parties' stipulation discontinuing the action against the original state defendants.¹³ On summary judgment, the trial court ruled for the plaintiffs, finding that the statute failed all three prongs of the Lemon Test,¹⁴ and was thus unconstitutional.¹⁵ A divided New York Appellate Division affirmed on the ground that the statute was unconstitutional because it had the primary effect of advancing religion.¹⁶ The state court of appeals affirmed.¹⁷ The Supreme Court of the United States granted certiorari,¹⁸ and affirmed the lower court, holding that because the statute was "tantamount to an allocation of political power on a religious criterion and neither presupposes nor requires governmental impartiality toward religion", it violated the prohibition on establishment.¹⁹

The First Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, provides, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."²⁰ In Reynolds v. United States,²¹ the Supreme Court interpreted the Establishment Clause as creating "a wall of separation between Church and State."²² Likewise, in Everson v. Board of Education of Ewing Township²³ the Supreme Court reaffirmed the idea that the Establishment Clause built a "wall of separation." However, this rigid "wall of separation" standard proved to be an unworkable test in light of the inevitable relationship between government and religion.²⁴ Thus, in Lemon v. Kurtzman²⁵ the Supreme Court finally recognized that "the line of separation, far from being a 'wall,' is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."²⁶ In Lemon, the

Court instituted a three-pronged test that vowed to add clarity and stability to Establishment Clause issues. Under the Lemon test, a governmental action must (1) have a secular purpose; (2) have a principal or primary effect that neither advances nor inhibits religion; and (3) must not foster an excessive government entanglement with religion.²⁷ Rather than providing clarity and stability to Establishment Clause analysis, the Lemon test has added only confusion and uncertainty in its use.²⁸ For example, in Larson v. Valente²⁹ the Supreme Court held that a Minnesota statute requiring registration and disclosure only of those religious organizations that solicited more than fifty percent of their funds from nonmembers violated the Establishment Clause.³⁰ The Court did not rely on the Lemon test to invalidate the statute, but rather applied strict scrutiny and the principle that government cannot prefer one religious organization over another.³¹ Alternatively, the Supreme Court in Larkin v. Grendel's Den, Inc.^2,2 relied exclusively on the Lemon test to hold that a Massachusetts statute, which vested in the governing bodies of churches the power to effectively veto applications for liquor licenses within a 500-foot radius of churches, violated the Establishment Clause.³³ Thus, the Court implicates the Lemon test only in some situations. In others, the Court will effectively ignore Lemon, and harken back to the principles of separation of church and state, and strict government neutrality towards religion.³⁴ A comparison of two recent cases, Aguilar v. Felton³⁵ and Lee v. Weisman,³⁶ provides a model illustration of this trend. In Aguilar, the Court's harsh adherence to the Lemon test struck down a New York City program that used federal funds to pay salaries of public school teachers who provided much needed remedial services to parochial schools.³⁷ By contrast, the

Court in Lee not only declined to reconsider Lemon,³⁸ but also did not even cite Lemon as authority in holding prayers at public school graduation ceremonies unconstitutional.³⁹ Rather, the Court resolved the Establishment Clause issue on the ground that government is forbidden to sponsor or direct a religious exercise in a public school.⁴⁰ Therefore, when Board of Education of Kiryas Joel Village School District⁴¹ confronted the Court, constitutional scholars eagerly hoped the Justices would either re-establish the Lemon test or formulate a new paradigm for Establishment Clause analysis.⁴²

The Supreme Court, in a six-to-three decision, held...