Now the U.S. Supreme Court will decide. Last week the justices agreed to hear the case next spring. By doing so, they’re once again confronting the toughest of contradictions in the Constitution. In one breath, the First Amendment prohibits the “establishment of religion”; in the very next, that amendment guarantees religion’s “free exercise.” That’s it: two opposite promises, which is a formula for doctrinal gridlock. The high-wire act required is worthy of the Wallendas: the more that government leans to one side to buttress one guarantee, the less it supports the other equally important one. In recent years some of the justices have chastised a string of rulings for not allowing government to “accommodate” religious practices. This case offers the court a chance to switch course. That, in turn, would invite the court to revisit such educational controversies as prayer in public schools and direct government aid to parochial schools.
In Kiryas Joel, the struggle to be separate–and at the same time reap some government benefits–has taken on a life of its own. First, 16 years ago, the Satmar Hasidim incorporated themselves as a separate village. Then, in 1989, after pressing the state legislature, the enclave won the right to establish its own public-school district–in effect, to secede from the larger Monroe-Woodbury district. The vast majority of Kiryas Joel children have always been educated in private religious schools. So the only purpose of the new district was to give the Hasidim public funds to educate their handicapped children; special-education yeshivas are too expensive. At the time the Hasidic handicapped attended special classes at Monroe-Woodbury schools. But Hasidic parents said their children were harassed there.
The new district set up a single school solely to address special-ed needs. Virtually all its students, now 220, are Hasidic. But most of the staff are not, and there is no religion in the curriculum. ‘At Monroe-Woodbury, they had my daughter play Rudolph the Red-nosed Reindeer in the school play," says Malka Silberstein. “And they claim their program is more secular than ours?” Still, New York courts found the Kiryas Joel school district unconstitutional. Its creation, New York’s highest court ruled, was “to yield to the demands of a religious community” with “separatist tenets.” The president of the Kiryas Joel district sees it differently. “This,” says Abe Weider, “is about the civil rights of children.”
If the Supreme Court sees it that way, the district will win. But that’s a long shot. The New York Legislature was clearly motivated to give the Hasidim a break. But such preferential treatment is what the justices have long said is barred by the First Amendment. So the village’s best chance is for the court to finally take up what it has previously threatened–shifting the constitutional balance more toward rules accommodating religion. Justice Antonin Scalia, who’s never met a precedent he wasn’t willing to scuttle, has been the court’s loudest critic. Last year, in typical swagger, Scalia compared those precedents to “some ghoul in a late-night horror movie that repeatedly sits up in its grave…after being repeatedly killed and buried. " Now the court will have a chance to wrestle with its demons again.
