Hasidic Schools: An 'Establishment' . . .


The prolonged controversy over the Kiryas Joel School District culminated last week in a Supreme Court decision holding an all-Hasidic public school district unconstitutional. It is more interesting as an illustration of the difficulty that society has accommodating groups in fundamental discord with its values -- and our collective fascination with a group so at odds with our pervasive modern culture -- than it is as law.

The decision should have surprised no one familiar with the Constitution, the political thought of the Founders nor the long struggle for religious liberty preceding the First Amendment. The court's holding that the Constitution prohibits the merging of political and religious power is unremarkable.

The goal of established churches in Europe at the time of the American Revolution and before was to ensure that the entire community shared the same faith, either through coerced conversions of religious dissenters or expulsion and persecution religious minorities. In colonial America, jurisdictions such as Massachusetts and Connecticut were founded and organized on religious lines. Citizenship depended on belonging to the favored church.

The First Amendment marked a deliberate turning away from this form of political organization. The religious liberty Americans enjoy today is the direct result of that farsighted decision of the Founders. In creating the Kiryas Joel Village School District, the New York State Legislature knowingly set about creating a political entity in which the entire community shared the same religious faith, thus retreating to a discredited commingling of secular and religious affairs.

To protect religious liberty, the Establishment Clause imposes limitations on religious communities that it does not impose on similar secular groups. Equality between religion and non-religion, as Justice Souter tartly reminded Justice Scalia in his opinion for the court, is not the only, nor even the principal, value protected by the Establishment Clause. Rather, the clause is intended to create a barrier, a buffer and a space between government and religion.

Precisely because religious beliefs are so deeply and passionately held, because they do not readily yield to the compromise which is the stuff of democracy -- indeed,because it wrong for the secular state to demand of religious believers that they compromise their religious beliefs -- the Constitution demands that religion not be the central organizing principle of any political jurisdiction.

Where politics and religion are mixed, abuse is all but inevitable. Although the evidence was not before the Supreme Court, in fact, religious dissension is not tolerated in the rigorously homogeneous community of Kiryas Joel. The religious authorities the community exercise control over the affairs of the school district and systematically suppress political and religious dissent.

The problem with the Kiryas Joel School District was not that it minimized interference with the religious practices of the Hasidic school children or (contrary to an unfortunate suggestion of Justice Stevens) that it permitted the insulation of Hasidic children from other children with different values. The same First Amendment which requires the separation of church and state demands that the state not undermine the religious choices of individuals and religious communities. There is nothing unconstitutional about accommodating religious separatism.

But there is a limit to accommodation. The line is crossed when the state enables religious communities to exercise actual political power. The creation of the Kiryas Joel School District crossed that line, and the Supreme Court had no alternative but to declare that district's existence a violation of our nation's fundamental law.

The dispute over Kiryas Joel was not over whether the Satmar Hasidic children are entitled to remedial education at public expense. The Supreme Court pointed to several ways in which the needs could be met in wholly constitutional ways -- including separate bilingual, Yiddish-speaking, classes. These methods are respectful of the special religious and cultural needs of these children as well as of the Constitution, and those of its policies which have spared the citizens of this country the endless religious battles that have so often and so long plagued other countries where political power is exercised along religious lines. (Unfortunately, it appears as if the New York Legislature has not learned the lesson: It is searching for a way to allow the Kiryas Joel School District to continue to function unaltered.)

Understandably, parents of learning-disabled children are less concerned with constitutional principle than educating their children. These parental priorities, however, should not be the occasion for a wholesale inversion of constitutional values. In the end, the religious freedom of groups like Satmar depends on the separation of civil and religious power as much as, if not more than, does the freedom of the neighborhood atheist or those of more widely accepted religious beliefs.

Marc D. Stern is co-director of the Commission on Law and Social Action of the American Jewish Congress. He prepared a brief on behalf of the congress and other groups opposing the Kiryas Joel School District.

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