Various thoughts on current events with an emphasis on politics, legal issues, sports, and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
In short, the case was about a constitutionally illegitimate means of addressing a legitimate problem.
This book is co-authored by "Grumet" in Board of Education of Kiryas Joel Village School District v. Grumet with a foreword by the former NY chief judge who wrote a separate opinion when the case arose to her court. It is interesting in that it discusses a somewhat obscure (if important) case and provides an insider's look at the politics involved. This is done in quick reading fashion if somewhat clunky at times. Also, it basically is done via is point of view, but he to me seems overall fair about the other side, especially since more than once, he respects the people involved.
Nonetheless, it is clear that he is not overly supportive of the position of the local Satmar Jews (orthodox, but anti-Zionist), who he portrays as having too much power. Their sense of unity (top down) makes them a powerful voting block, but of the tradition "faction" type that Madison* worried about. The case basically involves the problems with a special law to form a school district to benefit a religious community -- the legitimate problem being how to handle special needs children of a separatist group. Using the public schools caused problems. OTOH, unlike the Amish, this group is well open to use government resources as well.
A possible solution here would be to use publicly paid teachers in their parochial schools. The problem at the time was that Aguilar v. Feltonblocked it, that being seen as an illegitimate union of religion and state. The author seems to be okay with it being overturned (after his case was decided by the Supreme Court) but Grumet does not bluntly say as much. It is rather unclear if this book would have been written if the events happened a few years later. Ultimately, after a couple false starts, NY managed to find a way to pass a law that was not seen as a special favorite for one religious group. In the end, the school district continued.
Justice Kennedy concurred separately in this case and argued it was a problem because it was a type of religious gerrymander. It was not really necessary to apply basic religious precedent case law. He along with O'Connor was also open to overruling Aguilar v. Felton itself and they did so in a few years. Note that that ruling was 5-4 (over 6-3 here) with Justice Powell concurring to note the problems with both illegitimate advancement of religion ("effects" under the "Lemon Test") and entanglement. Some mixture had been acceptable (such as speech and hearing diagnostic services), but direct involvement of teachers was seen as crossing the line. This is the core of education and it does seem to me a valid dividing line.
The other side argues that it is not an illegitimate mixture of church and state and that we can trust the secular teachers here not to be wrongly influenced somehow by the parochial schools. We allow some public employees in after all, including one-on-one such as sign interpreters. Personally, I can see both sides -- see also, use of voucher money as a matter of constitutional policy (as compared to just sound public policy) -- but lean toward the separationist approach. The problem with voucher money is the basic concept of funding religion. Here, it is mixture of church and state, and also funding religion. The Satmars, e.g., after Aguilar v. Felton was overruled still wanted their district given the money and control it offered them. This even though they could have now had the teachers come to the parochial schools directly.
There was an argument here that this was a legitimate accommodation, particularly one of cultural significance. This is related to the "viewpoint" approach that the book addresses -- e.g., after school religious groups, even in elementary schools right after the bell, is just one more type of viewpoint. But, they aren't -- they are a religious group and the First Amendment provides special concern for and against there. So, yes, if this was merely a cultural group, the same First Amendment problem would not arise (though as suggested by the book, a special favoritism would run against NYS policy and basic public school diversity principles).
The co-author has had a long history in NY public policy, particularly to provide for the needs of education, including for special needs students. He is also Jewish. But, as noted at the beginning, legitimate needs can be handled with illegitimate ends. And, the sort of religious gerrymander provided here was such a thing. The book does a pretty good job discussing things though it might have been better if we got a bit more about the children involved (a particular parent is highlighted some).
* The co-author went to law school and all, but his citation of Jefferson (as a Founder?) and Madison to discuss what religious liberty entails is both standard and a tad weak. They are useful archetypes (one concerned about protecting religion from the state, the other vice versa), but let's remember that they are but two people. And, they were somewhat absolutist as compared to the average person at the time.
BTW, "Kiryas" is basically just "village" -- the "Joel" being the religious leader involved at the time.