How Tall the Wall of Church and State?

December 29, 1993|By JACK FRUCHTMAN Jr.

The Supreme Court has an unusual problem. Last month the justices decided to hear a case involving a decision by the state of New York to carve out a special school district in Orange County to serve handicapped Satmar Hasidic Jewish children. The court now has to determine whether this decision is an unconstitutional violation of the First Amendment.

The Hasidic Jewish community of Kiryas Joel claims that it wants to take advantage of a federal law protecting disabled children, without losing its right of self-governance and its interpretation of Judaism. It sought these ends through a state-created school district created for its handicapped children.

The First Amendment's reference to religion contains two parts: ''Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.'' ''Free exercise'' is not at issue here, but the ''establishment'' clause, addressing the appropriate relationship between religion and government, does arise.

The separation of church and state is sometimes described with the metaphor of a wall between the two standing tall and impregnable. Breaches of that wall require strong justifications, except for a few exceptions such as references to God on currency, chaplains in the armed services, prayers before sessions of Congress and the Supreme Court.

In Lemon v. Kurtzman (1970), the court established three key tests to determine the constitutionality of action taken by government in regard to a religious group: Does the government action have a secular purpose? Does it advance or inhibit religion? Does it cause the government to become excessively ''entangled'' with religion?

The Kiryas Joel community argues that these tests are too strict. It says government can ''accommodate'' its religious practices through creation of a school district because the Hasidic community has a right to inculcate its religious values in the secular teaching of its children.

The Hasidim are not alone. Some jurists (including Chief Justice Rehnquist and Justices Kennedy and Scalia) as well as politicians and religious leaders have argued that the wall of separation has risen too high, reflecting, in Justice Kennedy's words, ''an unjustified hostility toward religion.''

There is also a continuing campaign to overturn the court's 1962 ban on sponsored prayers in public schools. Recently a community in Jackson, Mississippi, protested the suspension of their school principal, who allowed his pupils over a three-day period to recite their own prayer over the public address system.

But what Kiryas Joel wants is more than a broader reading of the First Amendment. It also asserts the right to teach its particular religious values within a public school setting for its disabled children.

The Individuals with Disabilities Education Act, passed in 1975, prescribes that children with disabilities must be given a free and appropriate education. Just last June, the court said that a public school district must supply a sign-language interpreter for a hearing-impaired student who attended a Roman Catholic school. The court said that because James Zobrest went to a religious, rather than a public, school, the school district did not relinquish its responsibility to provide him with the ''auxiliary services'' required under the act simply because he failed to attend a public school.

The Americans with Disabilities Act requires that institutions such as public schools make ''reasonable efforts'' to accommodate children who are disabled. New York can simply claim that it made a reasonable accommodation when it created a new school district for Kiryas Joel.

The court now has to address the main issue: Is the special school district a service for students with disabilities or is it a violation of the First Amendment because it puts the state behind the teaching of religious values? New York's highest court saw it as a violation. Creation of the school district, the Court of Appeals ruled, amounted to yielding ''to the demands of a religious community,'' with ''separatist tenets.''

If the Supreme Court reverses that finding and upholds the state's creation of the school district, it will also endorse Kiryas Joel's desire for New York to pay for the teaching of Hasidic religious values to its children. If this is not ''excessive entanglement,'' then the court will have to come up with a new definition of excessive entanglement.

Jack Fruchtman Jr. teaches politics and constitutional law and directs the prelaw program at Towson State University.

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