Justices appear unsympathetic to publicly supported Jewish school district

March 31, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- A deeply religious Jewish community found few likely votes and not much sympathy at the Supreme Court yesterday for its plea to keep operating a public school district that was created for that community alone.

A one-hour hearing on what may turn out to be a historic case on government aid to religion revealed distinctly negative reactions to the community's position among most of the moderate justices who are likely to control the outcome. Only conservative Justice Antonin Scalia offered full-scale support for the community's plea.

The hearing provided no hint that the community would get its strongest wish: to have the court cast aside the strict constitutional formula it has been using for 23 years that generally bars most forms of official support for religious groups. There were also no reliable clues about how the newest justice, Ruth Bader Ginsburg, views that formula.

The Satmar Hasidic village of Kiryas Joel, an Orthodox Jewish community, was set up in 1977 in Monroe, N.Y., with its own local government.

The community has no English-language publications and watches no television. Most speaking and writing is in Yiddish; residents wear traditional garb, and boys and girls are taught in segregated classes at a parochial school.

When a nearby public school district refused in 1985 to continue providing teachers to teach disabled Satmarer children at their Orthodox school, the village refused to let the students go to regular public school for fear they would be traumatized by the different culture.

New York's legislature in 1989 passed a law to carve out a new school district from an existing school district, following the boundaries of the religious village.

The state's highest court, however, struck down that law last summer, using the Supreme Court's 1971 formula against most kinds of official aid to religion. The state court said the school district represented "a symbolic union" of government and religion.

Nathan Lewin, the Washington lawyer speaking for the Satmarer Hasidim, had hardly begun talking yesterday when Justice Sandra Day O'Connor suggested that the community was getting a favor from the state, and Justice Anthony M. Kennedy said it appeared that the Satmarer had been handed governmental power based solely on their religious practices.

Mr. Lewin countered that the legislature had sought merely to accommodate the community, the way a legislature might if it allowed a Jewish community to conduct trash collection on a day other than Saturday.

Justice O'Connor commented that allowing every community to decide on its own what day to collect trash would be a neutral gesture. But she said that was different from setting up a school district limited to a single religious community.

Justice David H. Souter said it appeared that the community got the district solely because of "the religious affiliation of the people."

Mr. Lewin disputed that. The lawyer remarked that those challenging the school district were suggesting that the Satmarer, "because they are religious, cannot be trusted to run a school district."

Justice Scalia spoke in support of the community, saying the legislature's approval of the district was meant to recognize the cultural differences of the Satmarer, not their religion.

Julie S. Mereson, the assistant attorney general representing New York state, defended the district as a "neutral" answer to the needs of the disabled Satmarer children. But Justice O'Connor said it would be "a dangerous precedent" for a state government to pass a law to deal with a single situation.

Jay Worona, a Slingerlands, N.Y., lawyer for the New York school boards' group that challenged the creation of the district, said the state law tests the limits of the Constitution's ban on official aid to religion.

He encountered aggressive questioning by Justice Scalia, who insisted that state governments ought to be free to accommodate different cultural preferences, even if those "spring out of religion."

Justice Ginsburg seemed somewhat more sympathetic than other moderate justices to the community's plight. She complained that Mr. Worona had been arguing that "these people can't take off their religious hats" when they operate their public school system. The lawyer said that was not the challengers' view.

The court is expected to rule before recessing in June.

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