Board of Education of Kiryas Joel Village School District v. Grumet

512 U.S. 687

Case Year: 1994

Case Ruling: 6-3, Affirmed

Opinion Justice: Souter

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Blackmun, Ginsburg, Kennedy, O'Connor, Stevens


1st Concurring Opinion

Author: Blackmun


1st Dissenting Opinion

Author: Scalia

Joiner(s): Thomas, Rehnquist

2nd Concurring Opinion

Author: Stevens

Joiner(s): Blackmun, Ginsburg

2nd Dissenting Opinion



3rd Concurring Opinion

Author: O'Connor


3rd Dissenting Opinion



Other Concurring Opinions:


The village of Kiryas Joel in New York State is a religious enclave of Satmar Hasidism--a strict form of Judaism. The sect's name comes from the European town in which the Grand Rebbe Joel Teitelbaum molded the group into a distinct community. After World War II, the Rebbe and his followers moved to Brooklyn, New York, and in the 1970s bought the subdivision that is now Kiryas Joel. At the time of this litigation, about 8,500 people, all members of the sect, lived in the village.

In following their religious beliefs, residents of Kiryas Joel avoid assimilation into the modern world. As Justice Souter noted, "...[T]hey interpret the Torah strictly; segregate the sexes outside of the home; speak Yiddish as their primary language; eschew television, radio, and English-language publications and dress in distinctive ways that include head coverings and special garments for boys and modest dresses for girls." Not surprisingly, they also send their children to private religious schools.

Legal problems emerged because these religious schools did not offer programs for special needs children, who, under federal law, are entitled to such services even if they attend private schools. To address this issue, the religious schools entered into an agreement with the Monroe-Woodbury Central School District (the district into which the village fell). Beginning in 1984, those services would be provided by the public school at a location adjacent to a private Satmar Hasidic school. This seemed to be a happy compromise: those Satmar children with special needs received the services they required but did not have to attend a public school to obtain them. Then, in 1985, the Supreme Court issued two decisions ( Aguillar v. Felton and School District of Grand Rapids v. Bell), which cast enough doubt on the arrangement to lead to its termination. Satmar children requiring special education were forced to attend public schools.

This turned out to be troublesome. Parents quickly withdrew their children, claiming that "the panic, fear and trauma [the children] suffered in leaving their own community and being with people whose ways were so different" was simply overwhelming. By 1989, only one family from Kiryas Joel sent its child to the public school. Other special needs children from the village received privately funded services or none at all. It was at that point that the New York legislature intervened. It passed Chapter 748, a law that provided that Kiryas Joel "is constituted a separate school district... and shall have and enjoy all the powers and duties of a union free school district...." With this legislation, the newly formed Kiryas Joel Village School District set up a special education program. It did not, however, create more general public schools; the balance of the children continued to attend the private religious schools for their basic education.

The matter appeared to be settled, until the New York State School Boards Association challenged the newly formed school district as a violation of the Establishment Clause. It claimed that the district was set up to benefit a particular religion in direct contradiction to Supreme Court precedent. A New York court agreed. In a summary judgment, it found that Chapter 748 violated all three prongs of the Lemon test. The state's intermediate and highest appellate court likewise struck down the legislation, finding that its primary effect was impermissibly to advance religion.



I [Summary of case facts. Omitted.]


..."A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of `neutrality' toward religion," Committee for Public Ed. & Religious Liberty v. Nyquist (1973), favoring neither one religion over others nor religious adherents collectively over nonadherents. Chapter 748, the statute creating the Kiryas Joel Village School District, departs from this constitutional command by delegating the State's discretionary authority over public schools to a group defined by its character as a religious community, in a legal and historical context that gives no assurance that governmental power has been or will be exercised neutrally.

Larkin v. Grendel's Den, Inc. (1982) provides an instructive comparison with the litigation before us. There, the Court was requested to strike down a Massachusetts statute granting religious bodies veto power over applications for liquor licenses. Under the statute, the governing body of any church, synagogue, or school located within 500 feet of an applicant's premises could, simply by submitting written objection, prevent the Alcohol Beverage Control Commission from issuing a license. In spite of the State's valid interest in protecting churches, schools, and like institutions from "`the hurly-burly' associated with liquor outlets," the Court found that in two respects the statute violated "the wholesome `neutrality' of which this Court's cases speak," School Dist. of Abington v. Schempp (1963). The Act brought about a "`fusion of governmental and religious functions'" by delegating "important, discretionary governmental powers" to religious bodies, thus impermissibly entangling government and religion. And it lacked "any `effective means of guaranteeing' that the delegated power `[would] be used exclusively for secular, neutral, and nonideological purposes'"; this, along with the "significant symbolic benefit to religion" associated with "the mere appearance of a joint exercise of legislative authority by Church and State," led the Court to conclude that the statute had a "`primary' and `principal' effect of advancing religion"; see also Lemon v. Kurtzman. Comparable constitutional problems inhere in the statute before us.


Larkin presented an example of united civic and religious authority, an establishment rarely found in such straightforward form in modern America,... and a violation of "the core rationale underlying the Establishment Clause."...

The Establishment Clause problem presented by Chapter 748 is more subtle, but it resembles the issue raised in Larkin to the extent that the earlier case teaches that a State may not delegate its civic authority to a group chosen according to a religious criterion. Authority over public schools belongs to the State and cannot be delegated to a local school district defined by the State in order to grant political control to a religious group. What makes this litigation different from Larkinis the delegation here of civic power to the "qualified voters of the village of Kiryas Joel," as distinct from a religious leader such as the village rov, or an institution of religious government like the formally constituted parish council in Larkin . In light of the circumstances of this case, however, this distinction turns out to lack constitutional significance.

It is, first, not dispositive that the recipients of state power in this case are a group of religious individuals united by common doctrine, not the group's leaders or officers. Although some school district franchise is common to all voters, the State's manipulation of the franchise for this district limited it to Satmars, giving the sect exclusive control of the political subdivision. In the circumstances of this case, the difference between thus vesting state power in the members of a religious group as such instead of the officers of its sectarian organization is one of form, not substance.... If New York were to delegate civic authority to "the Grand Rebbe," Larkin would obviously require invalidation... and the same is true if New York delegates political authority by reference to religious belief. Where "fusion" is an issue, the difference lies in the distinction between a government's purposeful delegation on the basis of religion and a delegation on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic authority.

Of course, Chapter 748 delegates power not by express reference to the religious belief of the Satmar community, but to residents of the "territory of the village of Kiryas Joel." Thus the second (and arguably more important) distinction between this case and Larkin is the identification here of the group to exercise civil authority in terms not expressly religious. But our analysis does not end with the text of the statute at issue, and the context here persuades us that Chapter 748 effectively identifies these recipients of governmental authority by reference to doctrinal adherence, even though it does not do so expressly. We find this to be the better view of the facts because of the way the boundary lines of the school district divide residents according to religious affiliation, under the terms of an unusual and special legislative act.

It is undisputed that those who negotiated the village boundaries when applying the general village incorporation statute drew them so as to exclude all but Satmars, and that the New York Legislature was well aware that the village remained exclusively Satmar in 1989 when it adopted Chapter 748.... The significance of this fact to the state legislature is indicated by the further fact that carving out the village school district ran counter to customary districting practices in the State. Indeed, the trend in New York is not toward dividing school districts but toward consolidating them....

The origin of the district in a special act of the legislature, rather than the State's general laws governing school district reorganization, is likewise anomalous. Although the legislature has established some 20 existing school districts by special act, all but one of these are districts in name only, having been designed to be run by private organizations serving institutionalized children. They have neither tax bases nor student populations of their own but serve children placed by other school districts or public agencies. The one school district petitioners point to that was formed by special act of the legislature to serve a whole community, as this one was, is a district formed for a new town, much larger and more heterogeneous than this village, being built on land that straddled two existing districts. Thus the Kiryas Joel Village School District is exceptional to the point of singularity, as the only district coming to our notice that the legislature carved from a single existing district to serve local residents. Clearly this district "cannot be seen as the fulfillment of [a village's] destiny as an independent governmental entity."...

Because the district's creation ran uniquely counter to state practice, following the lines of a religious community where the customary and neutral principles would not have dictated the same result, we have good reasons to treat this district as the reflection of a religious criterion for identifying the recipients of civil authority. Not even the special needs of the children in this community can explain the legislature's unusual Act, for the State could have responded to the concerns of the Satmar parents without implicating the Establishment Clause, as we explain in some detail further on. We therefore find the legislature's Act to be substantially equivalent to defining a political subdivision and hence the qualification for its franchise by a religious test, resulting in a purposeful and forbidden "fusion of governmental and religious functions."Larkin v. Grendel's Den.


The fact that this school district was created by a special and unusual Act of the legislature also gives reason for concern whether the benefit received by the Satmar community is one that the legislature will provide equally to other religious (and nonreligious) groups. This is the second malady the Larkin Court identified in the law before it, the absence of an "effective means of guaranteeing" that governmental power will be and has been neutrally employed. But whereas, inLarkin, it was religious groups the Court thought might exercise civic power to advance the interests of religion (or religious adherents), here the threat to neutrality occurs at an antecedent stage.

The fundamental source of constitutional concern here is that the legislature itself may fail to exercise governmental authority in a religiously neutral way. The anomalously case-specific nature of the legislature's exercise of state authority in creating this district for a religious community leaves the Court without any direct way to review such state action for the purpose of safeguarding a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion.... Because the religious community of Kiryas Joel did not receive its new governmental authority simply as one of many communities eligible for equal treatment under a general law, we have no assurance that the next similarly situated group seeking a school district of its own will receive one; unlike an administrative agency's denial of an exemption from a generally applicable law, which "would be entitled to a judicial audience,"... a legislature's failure to enact a special law is itself unreviewable. Nor can the historical context in this case furnish us with any reason to suppose that the Satmars are merely one in a series of communities receiving the benefit of special school district laws. Early on in the development of public education in New York, the State rejected highly localized school districts for New York City when they were promoted as a way to allow separate schooling for Roman Catholic children.... And in more recent history, the special Act in this case stands alone. The general principle that civil power must be exercised in a manner neutral to religion is one the Larkin Court recognized, although it did not discuss the specific possibility of legislative favoritism along religious lines because the statute before it delegated state authority to any religious group assembled near the premises of an applicant for a liquor license,... as well as to a further category of institutions not identified by religion. But the principle is well grounded in our case law, as we have frequently relied explicitly on the general availability of any benefit provided religious groups or individuals in turning aside Establishment Clause challenges. In Walz v. Tax Comm'n of New York City (1970), for example, the Court sustained a property tax exemption for religious properties in part because the State had "not singled out one particular church or religious group or even churches as such," but had exempted "a broad class of property owned by nonprofit, quasi-public corporations."...


In finding that Chapter 748 violates the requirement of governmental neutrality by extending the benefit of a special franchise, we do not deny that the Constitution allows the state to accommodate religious needs by alleviating special burdens. Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice. Rather, there is "ample room under the Establishment Clause for "benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference," Corporation of Presiding Bishop of Church of Jesus Christ of Later-day Saints v. Amos (1987); "government may (and sometimes must) accommodate religious practices and ... may do so without violating the Establishment Clause." Hobbie v. Unemployment Appeals Comm'n of Fla. (1987). The fact that Chapter 748 facilitates the practice of religion is not what renders it an unconstitutional establishment....

But accommodation is not a principle without limits, and what petitioners seek is an adjustment to the Satmars' religiously grounded preferences that our cases do not countenance. Prior decisions have allowed religious communities and institutions to pursue their own interests free from governmental interference,... but we have never hinted that an otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation. Petitioners' proposed accommodation singles out a particular religious sect for special treatment, and whatever the limits of permissible legislative accommodations may be, it is clear that neutrality as among religions must be honored....

This conclusion does not, however, bring the Satmar parents, the Monroe-Woodbury school district, or the State of New York to the end of the road in seeking ways to respond to the parents' concerns. Just as the Court in Larkin observed that the State's interest in protecting religious meeting places could be "readily accomplished by other means," there are several alternatives here for providing bilingual and bicultural special education to Satmar children. Such services can perfectly well be offered to village children through the Monroe-Woodbury Central School District. Since the Satmars do not claim that separatism is religiously mandated, their children may receive bilingual and bicultural instruction at a public school already run by the Monroe-Woodbury district. Or if the educationally appropriate offering by Monroe-Woodbury should turn out to be a separate program of bilingual and bicultural education at a neutral site near one of the village's parochial schools, this Court has already made it clear that no Establishment Clause difficulty would inhere in such a scheme, administered in accordance with neutral principles that would not necessarily confine special treatment to Satmars....


Justice Cardozo once cast the dissenter as "the gladiator making a last stand against the lions." JUSTICE SCALIA's dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining. We do not disable a religiously homogeneous group from exercising political power conferred on it without regard to religion.... Unlike the states of Utah and New Mexico (which were laid out according to traditional political methodologies taking account of lines of latitude and longitude and topographical features,... the reference line chosen for the Kiryas Joel Village School District was one purposely drawn to separate Satmars from non-Satmars. Nor do we impugn the motives of the New York Legislature,... which no doubt intended to accommodate the Satmar community without violating the Establishment Clause; we simply refuse to ignore that the method it chose is one that aids a particular religious community, as such, rather than all groups similarly interested in separate schooling.... And to end on the point with which JUSTICE SCALIA begins, the license he takes in suggesting that the Court holds the Satmar sect to be New York's established church, is only one symptom of his inability to accept the fact that this Court has long held that the First Amendment reaches more than classic, 18th century establishments....

Our job, of course would be easier if the dissent's position had prevailed with the Framers and with this Court over the years. An Establishment Clause diminished to the dimensions acceptable to JUSTICE SCALIA could be enforced by a few simple rules, and our docket would never see cases requiring the application of a principle like neutrality toward religion as well as among religious sects. But that would be as blind to history as to precedent, and the difference between JUSTICE SCALIA and the Court accordingly turns on the Court's recognition that the Establishment Clause does comprehend such a principle and obligates courts to exercise the judgment necessary to apply it.

In this case, we are clearly constrained to conclude that the statute before us fails the test of neutrality. It delegates a power this Court has said "ranks at the very apex of the function of a State," Wisconsin v. Yoder (1972), to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism. It therefore crosses the line from permissible accommodation to impermissible establishment. The judgment of the Court of Appeals of the State of New York is accordingly



For the reasons stated by JUSTICE SOUTER and JUSTICE STEVENS, whose opinions I join, I agree that the New York statute under review violates the Establishment Clause of the First Amendment. I write separately only to note my disagreement with any suggestion that today's decision signals a departure from the principles described in Lemon v. Kurtzman (1971). The opinion of the Court (and of the plurality with respect to Part II-A) relies upon several decisions, including Larkin v. Grendel's Den, Inc. (1982), that explicitly rested on the criteria set forth in Lemon. Indeed, the two principles on which the opinion bases its conclusion that the legislative act is constitutionally invalid essentially are the second and third Lemon


I have no quarrel with the observation of JUSTICE O'CONNOR... that the application of constitutional principles, including those articulated in Lemon, must be sensitive to particular contexts. But I remain convinced of the general validity of the basic principles stated in Lemon, which have guided this Court's Establishment Clause decisions in over 30 cases....


New York created a special school district for the members of the Satmar religious sect in response to parental concern that children suffered "panic, fear and trauma" when "leaving their own community and being with people whose ways were so different." To meet those concerns, the State could have taken steps to alleviate the children's fear by teaching their schoolmates to be tolerant and respectful of Satmar customs. Action of that kind would raise no constitutional concerns and would further the strong public interest in promoting diversity and understanding in the public schools.

Instead, the State responded with a solution that affirmatively supports a religious sect's interest in segregating itself and preventing its children from associating with their neighbors. The isolation of these children, while it may protect them from "panic, fear and trauma," also unquestionably increased the likelihood that they would remain within the fold, faithful adherents of their parents' religious faith. By creating a school district that is specifically intended to shield children from contact with others who have "different ways," the State provided official support to cement the attachment of young adherents to a particular faith. It is telling, in this regard, that two thirds of the school's full-time students are Hasidic handicapped children from outside the village; the Kiryas Joel school thus serves a population far wider than the village--one defined less by geography than by religion....

...[This law] is, I believe, fairly characterized as establishing, rather than merely accommodating, religion....


...I join Parts I, II-B, II-C, and III of the Court's opinion because I think this law, rather than being a general accommodation, singles out a particular religious group for favorable treatment. The Court's analysis of the history of this law and of the surrounding statutory scheme persuades me of this.

On its face, this statute benefits one group--the residents of Kiryas Joel. Because this benefit was given to this group based on its religion, it seems proper to treat it as a legislatively drawn religious classification. I realize this is a close question, because the Satmars may be the only group who currently need this particular accommodation. The legislature may well be acting without any favoritism, so that if another group came to ask for a similar district, the group might get it on the same terms as the Satmars. But the nature of the legislative process makes it impossible to be sure of this. A legislature, unlike the judiciary or many administrative decision makers, has no obligation to respond to any group's requests. A group petitioning for a law may never get a definite response, or may get a "no" based not on the merits, but on the press of other business or the lack of an influential sponsor. Such a legislative refusal to act would not normally be reviewable by a court. Under these circumstances, it seems dangerous to validate what appears to me a clear religious preference.

Our invalidation of this statute in no way means that the Satmars' needs cannot be accommodated. There is nothing improper about a legislative intention to accommodate a religious group, so long as it is implemented through generally applicable legislation. New York may, for instance, allow all villages to operate their own school districts. If it does not want to act so broadly, it may set forth neutral criteria that a village must meet to have a school district of its own; these criteria can then be applied by a state agency, and the decision would then be reviewable by the judiciary. A district created under a generally applicable scheme would be acceptable even though it coincides with a village which was consciously created by its voters as an enclave for their religious group. I do not think the Court's opinion holds the contrary.

I also think there is one other accommodation that would be entirely permissible: the 1984 scheme, which was discontinued because of our decision in Aguilar. The Religion Clauses prohibit the government from favoring religion, but they provide no warrant for discriminating against religion. All handicapped children are entitled by law to government-funded special education.... If the government provides this education on-site at public schools and at nonsectarian private schools, it is only fair that it provide it on-site at sectarian schools as well.

I thought this to be true in Aguilar (O'CONNOR, J., dissenting), and I still believe it today. The Establishment Clause does not demand hostility to religion, religious ideas, religious people, or religious schools.... It is the Court's insistence on disfavoring religion in Aguilar that led New York to favor it here. The Court should, in a proper case, be prepared to reconsider Aguilar, in order to bring our Establishment Clause jurisprudence back to what I think is the proper track--government impartiality, not animosity, towards religion.

One aspect of the Court's opinion in this case is worth noting: Like the opinions in two recent cases, Lee v. Weisman(1992); Zobrest v. Catalina Foothills School Dist. (1993), and the case I think is most relevant to this one, Larson v. Valente,(1982), the Court's opinion does not focus on the Establishment Clause test we set forth in Lemon v. Kurtzman(1971).

It is always appealing to look for a single test, a Grand Unified Theory that would resolve all the cases that may arise under a particular clause. There is, after all, only one Establishment Clause, one Free Speech Clause, one Fourth Amendment, one Equal Protection Clause....

But the same constitutional principle may operate very differently in different contexts. We have, for instance, no one Free Speech Clause test. We have different tests for content-based speech restrictions, for content-neutral speech restrictions, for restrictions imposed by the government acting as employer, for restrictions in nonpublic fora, and so on. This simply reflects the necessary recognition that the interests relevant to the Free Speech Clause inquiry--personal liberty, an informed citizenry, government efficiency, public order, and so on--are present in different degrees in each context.

And setting forth a unitary test for a broad set of cases may sometimes do more harm than good. Any test that must deal with widely disparate situations risks being so vague as to be useless. I suppose one can say that the general test for all free speech cases is "a regulation is valid if the interests asserted by the government are stronger than the interests of the speaker and the listeners," but this would hardly be a serviceable formulation. Similarly, Lemon has, with some justification, been criticized on this score.

Moreover, shoehorning new problems into a test that does not reflect the special concerns raised by those problems tends to deform the language of the test. Relatively simple phrases like "primary effect ... that neither advances nor inhibits religion" and "entanglement,"... acquire more and more complicated definitions which stray ever further from their literal meaning....

Finally, another danger to keep in mind is that the bad test may drive out the good. Rather than taking the opportunity to derive narrower, more precise tests from the case law, courts tend to continually try to patch up the broad test, making it more and more amorphous and distorted. This, I am afraid, has happened with Lemon.

Experience proves that the Establishment Clause, like the Free Speech Clause, cannot easily be reduced to a single test. There are different categories of Establishment Clause cases, which may call for different approaches. Some cases, like this one, involve government actions targeted at particular individuals or groups, imposing special duties or giving special benefits. Cases involving government speech on religious topics,... seem to me to fall into a different category, and to require an analysis focusing on whether the speech endorses or disapproves of religion, rather than on whether the government action is neutral with regard to religion.... As the Court's opinion today shows, the slide away from Lemon's unitary approach is well under way. A return to Lemon, even if possible, would likely be futile, regardless of where one stands on the substantive Establishment Clause questions. I think a less unitary approach provides a better structure for analysis. If each test covers a narrower and more homogeneous area, the tests may be more precise and therefore easier to apply. There may be more opportunity to pay attention to the specific nuances of each area. There might also be, I hope, more consensus on each of the narrow tests than there has been on a broad test. And abandoning the Lemon framework need not mean abandoning some of the insights that the test reflected, nor the insights of the cases that applied it.

Perhaps eventually under this structure we may indeed distill a unified, or at least a more unified, Establishment Clause test from the cases.... But it seems to me that the case law will better be able to evolve towards this if it is freed from the Lemon test's rigid influence. The hard questions would, of course, still have to be asked; but they will be asked within a more carefully tailored and less distorted framework....


The Court's ruling that the Kiryas Joel Village School District violates the Establishment Clause is in my view correct, but my reservations about what the Court's reasoning implies for religious accommodations in general are sufficient to require a separate writing. As the Court recognizes, a legislative accommodation that discriminates among religions may become an establishment of religion. But the Court's opinion can be interpreted to say that an accommodation for a particular religious group is invalid because of the risk that the legislature will not grant the same accommodation to another religious group suffering some similar burden. This rationale seems to me without grounding in our precedents and a needless restriction upon the legislature's ability to respond to the unique problems of a particular religious group. The real vice of the school district, in my estimation, is that New York created it by drawing political boundaries on the basis of religion. I would decide the issue we confront upon this narrower theory, though in accord with many of the Court's general observations about the State's actions in this case....

This is an unusual case, for it is rare to see a State exert such documented care to carve out territory for people of a particular religious faith. It is also unusual in that the problem to which the Kiryas Joel Village School District was addressed is attributable in no small measure to what I believe were unfortunate rulings by this Court.

Before 1985, the handicapped Satmar children of Kiryas Joel attended the private religious schools within the village that the other Satmar children attended. Because their handicaps were in some cases acute (ranging from mental retardation and deafness to spina bifida and cerebral palsy), the State of New York provided public funds for special education of these children at annexes to the religious schools. Then came the companion cases of School Dist. of Grand Rapids v. Ball (1985) and Aguilar v. Felton (1985). In Grand Rapids, the Court invalidated a program in which public school teachers would offer supplemental classes at private schools, including religious schools at the end of the regular school day. And in Aguilar, the Court invalidated New York City's use of Title I funding to pay the salaries of public school teachers who taught educationally deprived children of low-income families at parochial schools in the city. After these cases, the Monroe-Woodbury School District suspended its special education program at the Kiryas Joel religious schools, and the Kiryas Joel parents were forced to enroll their handicapped children at the Monroe-Woodbury public schools in order for the children to receive special education. The ensuing difficulties, as the Court recounts led to the creation of the Kiryas Joel Village School District.

The decisions in Grand Rapids and Aguilarmay have been erroneous. In light of the case before us, and in the interest of sound elaboration of constitutional doctrine, it may be necessary for us to reconsider them at a later date. A neutral aid scheme, available to religious and nonreligious alike, is the preferable way to address problems such as the Satmar handicapped children have suffered.... But for Grand Rapids and Aguilar, the Satmars would have had no need to seek special accommodations or their own school district. Our decisions led them to choose that unfortunate course, with the deficiencies I have described.

One misjudgment is no excuse, however, for compounding it with another. We must confront this case as it comes before us, without bending rules to free the Satmars from a predicament into which we put them. The Establishment Clause forbids the government to draw political boundaries on the basis of religious faith. For this reason, I concur in the judgment of the Court.


The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar.... I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion. Unlike most of our Establishment Clause cases involving education, these cases involve no public funding, however slight or indirect, to private religious schools. They do not involve private schools at all. The school under scrutiny is a public school specifically designed to provide a public secular education to handicapped students. The superintendent of the school, who is not Hasidic, is a 20-year veteran of the New York City public school system, with expertise in the area of bilingual, bicultural, special education. The teachers and therapists at the school all live outside the village of Kiryas Joel. While the village's private schools are profoundly religious and strictly segregated by sex, classes at the public school are co-ed and the curriculum secular. The school building has the bland appearance of a public school, unadorned by religious symbols or markings; and the school complies with the laws and regulations governing all other New York State public schools. There is no suggestion, moreover, that this public school has gone too far in making special adjustments to the religious needs of its students.... In sum, these cases involve only public aid to a school that is public as can be. The only thing distinctive about the school is that all the students share the same religion.

None of our cases has ever suggested that there is anything wrong with that. In fact, the Court has specifically approved the education of students of a single religion on a neutral site adjacent to a private religious school. See Wolman v. Walter(1977).... And just last Term, the Court held that the State could permit public employees to assist students in a Catholic school. See Zobrest v. Catalina Foothills School Dist. (1993) (sign language translator for deaf student). If a State can furnish services to a group of sectarian students on a neutral site adjacent to a private religious school, or even within such a school, how can there be any defect in educating those same students in a public school? As the Court noted in Wolman, the constitutional dangers of establishment arise "from the nature of the institution, not from the nature of the pupils."... There is no danger in educating religious students in a public school.

For these very good reasons, JUSTICE SOUTER's opinion does not focus upon the school, but rather upon the school district and the New York Legislature that created it....

For his thesis that New York has unconstitutionally conferred governmental authority upon the Satmar sect, JUSTICE SOUTER relies extensively, and virtually exclusively, upon Larkin v. Grendel's Den, Inc., (1982). JUSTICE SOUTER believes that the present case "resembles" Grendel's Den because that cases "teaches that a state may not delegate its civic authority to a group chosen according to a religious criterion." That misdescribes both what that case taught (which is that a state may not delegate its civil authority to a church), and what this case involves (which is a group chosen according to cultural characteristics).... JUSTICE SOUTER concedes that Grendel's Den "presented an example of united civic and religious authority, an establishment rarely found in such straightforward form in modern America.".... Astonishingly, however, JUSTICE SOUTER dismisses the difference between a transfer of government power to citizens who share a common religion as opposed to "the officers of its sectarian organization"--the critical factor that made Grendel's Denunique and "rar[e]"--as being "one of form, not substance."...

JUSTICE SOUTER's steamrolling of the difference between civil authority held by a church, and civil authority held by members of a church, is breathtaking. To accept it, one must believe that large portions of the civil authority exercised during most of our history were unconstitutional, and that much more of it than merely the Kiryas Joel School District is unconstitutional today. The history of the populating of North America is in no small measure the story of groups of people sharing a common religious and cultural heritage striking out to form their own communities.... It is preposterous to suggest that the civil institutions of these communities, separate from their churches, were constitutionally suspect. And if they were, surely JUSTICE SOUTER cannot mean that the inclusion of one or two nonbelievers in the community would have been enough to eliminate the constitutional vice. If the conferral of governmental power upon a religious institution as such (rather than upon American citizens who belong to the religious institution) is not the test of Grendel's Den invalidity, there is no reason why giving power to a body that is overwhelmingly dominated by the members of one sect would not suffice to invoke the Establishment Clause. That might have made the entire States of Utah and New Mexico unconstitutional at the time of their admission to the Union, and would undoubtedly make many units of local government unconstitutional today.

JUSTICE SOUTER's position boils down to the quite novel proposition that any group of citizens (say, the residents of Kiryas Joel) can be invested with political power, but not if they all belong to the same religion. Of course such disfavoring of religion is positively antagonistic to the purposes of the Religion Clauses, and we have rejected it before.... I see no reason why it is any less pernicious to deprive a group, rather than an individual, of its rights simply because of its religious beliefs....

I turn, next, to JUSTICE SOUTER's second justification for finding an establishment of religion: his facile conclusion that the New York Legislature's creation of the Kiryas Joel School District was religiously motivated. But in the Land of the Free, democratically adopted laws are not so easily impeached by unelected judges. To establish the unconstitutionality of a facially neutral law on the mere basis of its asserted religiously preferential (or discriminatory) effects--or at least to establish it in conformity with our precedents--JUSTICE SOUTER "must be able to show the absence of a neutral, secular basis" for the law.... There is, of course, no possible doubt of a secular basis here. The New York Legislature faced a unique problem in Kiryas Joel: a community in which all the nonhandicapped children attend private schools, and the physically and mentally disabled children who attend public school suffer the additional handicap of cultural distinctiveness. It would be troublesome enough if these peculiarly dressed, handicapped students were sent to the next town, accompanied by their similarly clad but unimpaired classmates. But all the unimpaired children of Kiryas Joel attend private school. The handicapped children suffered sufficient emotional trauma from their predicament that their parents kept them home from school. Surely the legislature could target this problem, and provide a public education for these students, in the same way it addressed, by a similar law, the unique needs of children institutionalized in a hospital....

JUSTICE SOUTER's case against the statute comes down to nothing more, therefore, than his third point: the fact that all the residents of the Kiryas Joel Village School District are Satmars. But all its residents also wear unusual dress, have unusual civic customs, and have not much to do with people who are culturally different from them.... On what basis does JUSTICE SOUTER conclude that it is the theological distinctiveness, rather than the cultural distinctiveness, that was the basis for New York State's decision? The normal assumption would be that it was the latter, since it was not theology, but dress, language, and cultural alienation that posed the educational problem for the children. JUSTICE SOUTER not only does not adopt the logical assumption, he does not even give the New York Legislature the benefit of the doubt. The following is the level of his analysis:

"Not even the special needs of the children in this community can explain the legislature's unusual Act, for the State could have responded to the concerns of the Satmar parents [by other means]."

In other words, we know the legislature must have been motivated by the desire to favor the Satmar Hasidim religion, because it could have met the needs of these children by a method that did not place the Satmar Hasidim in a separate school district. This is not a rational argument proving religious favoritism; it is rather a novel Establishment Clause principle to the effect that no secular objective may be pursued by a means that might also be used for religious favoritism if some other means is available....

But even if Chapter 748 were intended to create a special arrangement for the Satmars because of their religion (not including, as I have shown in Part I, any conferral of governmental power upon a religious entity), it would be a permissible accommodation....

In today's opinion, however, the Court seems uncomfortable with this aspect of our constitutional tradition. Although it acknowledges the concept of accommodation, it quickly points out that it is "not a principle without limits," and then gives reasons why the present case exceeds those limits, reasons which simply do not hold water....

The... last reason the Court finds accommodation impermissible is, astoundingly, the mere risk that the State will not offer accommodation to a similar group in the future, and that neutrality will therefore not be preserved. Returning to the ill fitted crutch of Grendel's Den, the Court suggests that by acting through this special statute the New York Legislature has eliminated any "'effective means of guaranteeing' that governmental power will be and has been neutrally employed."...

The Court's demand for "up front" assurances of a neutral system is at war with both traditional accommodation doctrine and the judicial role. As we have described, Congress's earliest accommodations exempted duties paid by specific churches on particular items.... Moreover, most efforts at accommodation seek to solve a problem that applies to members of only one or a few religions. Not every religion uses wine in its sacraments, but that does not make an exemption from Prohibition for sacramental wine-use impermissible,... nor does it require the State granting such an exemption to explain in advance how it will treat every other claim for dispensation from its controlled substances laws. Likewise, not every religion uses peyote in its services, but we have suggested that legislation which exempts the sacramental use of peyote from generally applicable drug laws is not only permissible, but desirable, see Employment Div., Ore. Dept of Human Resources v. Smith (1990), without any suggestion that some "up front" legislative guarantee of equal treatment for sacramental substances used by other sects must be provided. The record is clear that the necessary guarantee can and will be provided, after the fact, by the courts....

Contrary to the Court's suggestion,... I do not think that the Establishment Clause prohibits formally established "state" churches and nothing more. I have always believed, and all my opinions are consistent with the view, that the Establishment Clause prohibits the favoring of one religion over others. In this respect, it is the Court that attacks lions of straw....

A few words in response to the separate concurrences....

JUSTICE KENNEDY expresses the view that School Dist. of Grand Rapids v. Ball (1985) and Aguilar v. Felton (1985)--the cases that created the need for the Kiryas Joel legislation by holding unconstitutional state provision of supplemental educational services in sectarian schools--"may have been erroneous," and he suggests that "it may be necessary for us to reconsider them at a later date."... JUSTICE O'CONNOR goes even further and expresses the view that Aguilar should be overruled.... I heartily agree that these cases, so hostile to our national tradition of accommodation, should be overruled at the earliest opportunity; but meanwhile, today's opinion causes us to lose still further ground, and in the same anti-accommodationist direction.

Finally, JUSTICE O'CONNOR observes that the Court's opinion does not focus on the so-called Lemon test, and she urges that that test be abandoned at least as a "unitary approach" to all Establishment Clause claims. I have previously documented the Court's convenient relationship with Lemon, which it cites only when useful, and I no longer take any comfort in the Court's failure to rely on it in any particular case, as I once mistakenly did....

Unlike JUSTICE O'CONNOR, however, I would not replace Lemon with nothing, and let the case law "evolve" into a series of situation-specific rules... unconstrained by any "rigid influence,"... The problem with (and the allure of) Lemon has not been that it is "rigid," but rather that, in many applications, it has been utterly meaningless, validating whatever result the Court would desire.... To replace Lemon with nothing is simply to announce that we are now so bold that we no longer feel the need even to pretend that our haphazard course of Establishment Clause decisions is governed by any principle. The foremost principle I would apply is fidelity to the longstanding traditions of our people, which surely provide the diversity of treatment that JUSTICE O'CONNOR seeks, but do not leave us to our own devices.

The Court's decision today is astounding. Chapter 748 involves no public aid to private schools, and does not mention religion. In order to invalidate it, the Court casts aside, on the flimsiest of evidence, the strong presumption of validity that attaches to facially neutral laws, and invalidates the present accommodation because it does not trust New York to be as accommodating toward other religions (presumably those less powerful than the Satmar Hasidim) in the future. This is unprecedented--except that it continues, and takes to new extremes, a recent tendency in the opinions of this Court to turn the Establishment Clause into a repealer of our Nation's tradition of religious toleration. I dissent.