William H. Rehnquist: We'll hear argument now in Number 93-517, the Board of Education of Kiryas Joel Village School District v. Louis Grumet, and two cases consolidated with it for argument. Mr. Lewin.
Nathan Lewin: Mr. Chief Justice and may it please the Court: The statute that is being challenged in this case as inconsistent on its face with the Establishment Clause of the First Amendment involves no governmental participation in the teaching and propagation of religious doctrine and underwrites no public employee to participate directly in religious indoctrination. These were factors that were present in the Government program that the Court sustained last term in the Zobrest case, and they led Justices Blackmun and Souter to dissent in that case. By contrast, the New York legislature has authorized the residents of a legally incorporated village that has existed since 1977 that elects a mayor and a village board and enacts ordinances that comprise the code of the Village of Kiryas Joel to operate a wholly secular public school.
Sandra Day O'Connor: Mr. Lewin, may I inquire, this is a special act of the legislature just directed to form this one school district?
Nathan Lewin: It is an independent... yes, Justice--
Sandra Day O'Connor: Were the laws of the State of New York not such that other people similarly situated could form their own special school district? Why did a special law have to be enacted here?
Nathan Lewin: --The legislature in New York has... does enact laws that creates school districts and bounds of school districts. That's referred to specifically in the complaint in this case. That's the way the--
Sandra Day O'Connor: Is every school district in the State of New York formed by a special act of the legislature?
Nathan Lewin: --It's formed by acts of the legislature.
Sandra Day O'Connor: Rather than by a general provision that allows residents of areas to form their own district.
Nathan Lewin: My understanding is that that's correct. The enactment of the boundaries of school districts is done by legislative enactment.
Sandra Day O'Connor: It's always done that way--
Nathan Lewin: Yes.
Sandra Day O'Connor: --not by some general law--
Nathan Lewin: Not by some general law.
Sandra Day O'Connor: --that would allow similar groups to form districts.
Nathan Lewin: Correct.
Anthony M. Kennedy: Is it fair to say that governmental power was transferred here to a geographic entity based on the religious beliefs and practices of its residents?
Nathan Lewin: I think, Justice Kennedy, that that's not a fair characterization. It was transferred to the residents of a village. Those residents are indeed all of a particular religious denomination, and very devoutly so, but the... it was not that the statute in any way itself drew lines that distinguished on the basis of religion.
Anthony M. Kennedy: If my characterization that I used in the question were deemed the appropriate characterization, would you lose the case?
Nathan Lewin: Well, I don't think so, not even under those circumstances, although that's not this case, Justice Kennedy, because I think that if in fact, as a matter of legislative accommodation, a group of individuals residing in a particular geographic area would warrant having a separate public school for secular reasons, which is what happened in this case, it would be permissible to accommodate to them, and... or even to accommodate to their religious practice. Our view is that accommodation by the legislature to the needs of a religious community is permissible. My example would be, for example, this book covers garbage disposal within the Village of Kiryas Joel. There's a code that talks about trash disposal. If a community, for example, said, we will not accept trash disposal on the Sabbath, on Saturday... we think it's inappropriate for religious reasons... if the legislature then said, all right, for that reason we'll allow you to conduct your own trash disposal on some other day of the week, and you do it yourself, we think that's within the spirit of what the free exercise laws--
Sandra Day O'Connor: Well, Mr. Lewin, if... if such a law were to neutrally extend to everybody in New York, so that anybody similarly situated could dispose of their own trash, I think you have a very good argument. I have a little trouble seeing why the same analysis applies when the law that you're examining is not neutral. It's just limited to this one situation. It isn't a broadly based law that says people living in a village can have their own school district, whoever they are, whether they're this group or some other group, and yet it seems that New York has chosen to do this quite separately, so I hope you will address that aspect. One other question, preliminarily. I guess we wouldn't be here today but for this Court's decision in Aguilar.
Nathan Lewin: --That's correct, Justice O'Connor. It's this Court's decision in Aguilar that precipitated the situation that required some action to be taken regarding the disabled children of Kiryas Joel.
Sandra Day O'Connor: If Aguilar-- --And had we held-- --Excuse me. --otherwise, then the services would be provided with the Federal aid on the premises of the religious schools. And if that were happening, would the mechanism of the accommodation that is in question here have been permissible?
Nathan Lewin: I think, Justice Kennedy, it would have been permissible. Indeed, it appears from the position of the Monroe-Woodbury School District that from the vantage point of the overall school district, this is a preferable accommodation. The Monroe-Woodbury School District did not want to provide teaching at a neutral site in Kiryas Joel. They--
Anthony M. Kennedy: No, no, no, my question, following Justice O'Connor's, was, had Aguilar v. Felton come out the other way--
Nathan Lewin: --Yes.
Anthony M. Kennedy: --And these services had been provided in the private schools themselves, would you then nevertheless have had the constitutional option to have the district formed as it was here?
Nathan Lewin: No. If... we agree that if, in fact, the services were being provided under the pre-Aguilar procedure, there would not have been any justification for the legislature saying we have to accommodate or we have to take this step. Under those circumstances, there would be much more basis to argue that this is only being done to provide some kind of authority to these citizens who happen to be religious.
David H. Souter: Well, Mr. Lewin, may I ask you a question of fact there? You have spoken several times of the fact that they happen to be religious. Is it part of the record in this case that the village district upon which the school district was superimposed was... was defined geographically by reference to the religious affiliation of the people in it, so that non-Satmar Hasidim were excluded, and those within the village all fell within the category of the Satmar sect?
Nathan Lewin: Justice Souter, I think the record really establishes the contrary. The record establishes that what happened in this case... and it appears in the very first pages of the Joint Appendix... that what happened in this case was that the original village that was proposed... and that's at page 12 of the Joint Appendix... the Satmars presented a petition to form a new village of very large dimensions which included many properties and people not of the Satmar belief, so that consequently the original petition was not in any way limited by where Satmar Hasidim happened to live. What happened, the real basis for the creation of the village was a zoning dispute. Since Satmar Hasidim have large families... indeed, I think the record shows there's over 60 percent of the population is under 17 years of age, they needed homes which would accommodate larger families, and that precipitated, as I say, a zoning dispute. The consequence ultimately was, as page 13 of the Joint Appendix shows, that a new village on a much smaller scale than originally proposed was presented only because the people who were to be included in the larger area said they did not want to be in this village, so that the--
Antonin Scalia: Well, that maybe unconstitutional too, Mr. Lewin, I guess. If people for religious reasons have larger families we can't have special communities with special zoning rules for them, either.
Nathan Lewin: --Well, Justice Scalia, of course, our view is that the accommodation authority that legislatures have and that this Court has recognized... indeed, even as strong a proponent of the Establishment Clause as Justice Brennan in his Texas Monthly case in footnote 8 specifically referred to the fact that the authority to accommodate is far broader than the mere confines of the Free Exercise Clause.
Antonin Scalia: But the argument being made is that if they had large families for some other reason, not a religious reason, you could... you could establish a special community with different zoning laws for that group, but if they have large families for religious reasons, just as this community has certain customs that make it difficult for them to go to another community for their schooling for religious reasons, then it's bad.
Nathan Lewin: Well, our view, of course, is that that--
Speaker: It seems to me that's the argument being made.
Nathan Lewin: --That turns the First Amendment on its head. That essentially means that the free exercise of religion, which is protected by the Constitution, becomes the one impermissible vice that invalidates anything that's done, and we think--
David H. Souter: But leaving that argument aside, I take it that the upshot of the creation... of the forces that led to the creation of the village was that in fact the village was defined by adherence to this sect. Whether the precipitant for that was concern over zoning, that was the result, I take it.
Nathan Lewin: --The consequence was... yes, Justice Souter, that they are... all the residents of the village are Satmar Hasidim, but the point that I'm trying to make--
Ruth Bader Ginsburg: Mr. Lewin, am I right that there's no dispute in this record that compliance with the New York law in establishing villages isn't at issue. It's rather easy to form a village, and although this opinion that you cited allows the village rather grudgingly makes the point that whatever this group was, that they met all the requirements of New York State law to form a separate village, so that's--
Nathan Lewin: --There's no dispute, Justice Ginsburg, and I think the petitioners have never challenged the existence of the village. They've--
Ruth Bader Ginsburg: --Your case I think would be considerably harder if you didn't have the school district that coincided with the preexisting village boundaries.
Nathan Lewin: --We acknowledge that. It would be more difficult. The question then would be squarely presented whether, in order to accommodate a religious group living within an area which had not previously defined, it would be permissible for the legislature to draw lines to accommodate that religious group, but that's not this case.
Antonin Scalia: Well, you'd say that would be okay, too.
Nathan Lewin: Well, again, with the caveat that that is not by any means this case--
Speaker: I understand.
Nathan Lewin: --We believe that that is part of the spirit of accommodation, that if in fact--
Ruth Bader Ginsburg: But it would not be all right if, say, a religious body... say, the board of the synagogue... had been appointed the board members of the school board. That would--
Nathan Lewin: --Absolutely not. We agree with that, Justice Ginsburg. It would be impermissible, and here the important point is that this property of the village is privately owned by its residents. They have chosen to purchase the property and to live together, and anybody... anybody in this room, anybody in New York State, is permitted, and indeed, under New York law, may not be discriminated against if they choose to seek to purchase property in that village.
Harry A. Blackmun: --Mr. Lewin, will you clear up one factual situation that I'm confused about? Were all of the students here residents of this school district?
Nathan Lewin: All... no, Justice Blackmun. Currently... again, initially when the school district was created, it was created with the intention of serving the students in Kiryas Joel, the children of Kiryas Joel. Once it was created, since it provides a bilingual and bicultural program, there are other students who have... who are disabled from other neighboring communities who have been permitted, under procedures which, Justice O'Connor, in line with your question as to whether this is universal, with procedures which are universal with regard to other school districts and other circumstances have been permitted to attend this public school which neighbors or adjoins their own home districts.
Harry A. Blackmun: Roughly how many of them are there, percentagewise?
Nathan Lewin: I think the percentage runs maybe 10 to 20 percent or so. I don't think it's higher than that. It is a very--
Speaker: May I--
Nathan Lewin: --It is a relatively small number, but there are a number of them that--
John Paul Stevens: --May I ask one other factual question?
Nathan Lewin: --Yes, Justice.
John Paul Stevens: Are the children separated by sex, or are they all... boys and girls take training together?
Nathan Lewin: In this school, Justice Stevens, boys and girls go to class together.
John Paul Stevens: That puzzles me, because is that consistent with the religious doctrine?
Nathan Lewin: It is consistent with the religious doctrine, because the views of the Satmar Hasidim and of their religious authorities is that when the purpose of education is this kind of remedial education, which is to... it is permissible to have boys and girls study together, and so that that has been approved by... or has long been the practice within the religious community.
John Paul Stevens: Was that also true during the pre-Aguilar special education program?
Nathan Lewin: My understanding is yes, it was always true.
William H. Rehnquist: Thank you. Is this place geographically located up around Rochester?
Nathan Lewin: It's near Harriman... Monroe, is it near Rochester... it's further south, I'm sorry.
William H. Rehnquist: So it's not Monroe County, then. It's on the Hudson.
Nathan Lewin: I'm sorry, I... Orange County. It's in Orange County. I'm sorry. The points that we wish to emphasize with regard to this statute is that it is a legislative determination. Justice O'Connor asked whether this applied uniformly. As we have indicated, accommodations, we believe, can be applied, and always are applied, indeed, to particular situations. This Court said in its Employment Division v. Smith case, for example, that if there were a legislative exemption for the smoking of peyote, that would be permissible. Now, that by its very nature applies only to one religious group, because... for its religious practice, and consequently we--
Sandra Day O'Connor: How about the Sabbatarian case?
Nathan Lewin: --The Sabbatarian--
Sandra Day O'Connor: Well, that was struck down, wasn't it--
Nathan Lewin: --Well, that was--
Sandra Day O'Connor: --because it didn't apply neutrally to people with other needs for a day off.
Nathan Lewin: --With all respect, Justice O'Connor, I think the Sabbatarian case was one in which this Court felt that there was a burden on others to pick up for the Sabbatarian, and in that footnote in which Justice Brennan in his Texas Monthly case speaks of accommodations, he refers to the fact that that's a distinction, whether the nonobservers are burdened by the statute. In this case, there's no burden on anyone else. This is simply a statute which applies to this municipality and essentially what the courts below have said is that these people, because they are religious, cannot be trusted to run a public school system.
David H. Souter: Mr. Lewin, I took you a moment ago in your answer to Justice Kennedy's question about the significance of Aguilar to accept the proposition that in judging what is a permissible, permissive accommodation, that the range of possible alternatives for the accommodation should be considered. Is that... do you think that's a... basically a fair premise?
Nathan Lewin: Well, the need for accommodation, I don't think the range of accommodations. In other words, this is not an area... and I know that there is one judge in the court below, Judge Kaye--
Speaker: Yes. I was getting at that, yes.
Nathan Lewin: --Judge Kaye, who said, look, this... the least restrictive alternatives standard should apply. We think that's wrong. When the legislature--
David H. Souter: Well, I think I would agree with you there, but you can reject the least alternative theory and still accept the view that alternatives should be considered in deciding just how far the accommodation can legitimately go.
Nathan Lewin: --I think that's true, and I think it's particularly important in deciding whether there should be any accommodation at all, and under Justice Kennedy's hypothetical, it appeared to me there's no need for any accommodation because this very same service is being performed neutrally by the regular procedures in a way that is perfectly consistent with the religious observance. I'd like to reserve--
Ruth Bader Ginsburg: Mr. Lewin, I have one question about one of your copetitioners. There was a reference by the Monroe-Woodbury School Board in their brief that compared the alleged restraint on sale and rental of property to people outside the Satmar community to a church tithe that the individual is free to pay or not to pay, and I found that disturbing, because as I understand it, there is no choice. The State law and the Federal law requires that sale and rental be on a nondiscriminatory basis. The Satmar does not have a choice to refuse to sell to an outsider. Is that your understanding?
Nathan Lewin: --We agree with that entirely, Justice Ginsburg. They have no choice, and if anybody comes in and wants to live in that community and purchase a home, they're entitled to do so. I'd like to reserve the rest of my time for rebuttal.
William H. Rehnquist: Very well, Mr. Lewin. Ms. Mereson.
Julie S. Mereson: Mr. Chief Justice, and may it please the Court: Do I need to lower the microphone?
Speaker: It might help.
Julie S. Mereson: Okay. The issue here is whether the State's action was one that tolerated religious and lifestyle differences, or whether it advanced, promoted, or furthered the Satmar sect itself. The former is commanded by the Constitution, but the latter is prohibited.
Antonin Scalia: Do you see a difference between the two? I mean, is that a usable test? By tolerating it and facilitating it, you advance it. I mean, do we have to pretend that there's a difference between the two?
Julie S. Mereson: I believe there's a great difference between the two.
Speaker: There is?
Julie S. Mereson: In fact, there's a red line between the two that sometimes is hard to discern, perhaps, but on the one hand you have an ability to tolerate and to acknowledge something that preexists the legislation or State act, and then on the other side, you have things that actually encourage religious practice or make it particularly advantageous to practice a religion... for instance, the prayer in the schools. Tolerance is a recognition of differences and an alleviation of a burden. On the other side of the Establishment Clause, the free exercise right, the tolerance is an accommodation. It's a means of making somebody's religious life not disadvantageous.
Sandra Day O'Connor: Well, do you think that the State's accommodation needs to be neutrally applied, if possible, so that all people similarly situated have the same option, or can the State single out one sect or one religious group and provide some benefit there, but not make it generally applicable? Is there a difference, in a neutrally applied scheme open to all?
Julie S. Mereson: The neutrality here is not in the sense of applying to all. There is neutrality here, and yes, the State needs to be neutral, but the neutrality exists in the context of the particular problem. When you're dealing--
Sandra Day O'Connor: Well, how is this neutral, if the legislature set up just a special school district for this one situation, instead of passing a law to the effect that groups of people or villages or towns can form their own school district by applying neutral criteria?
Julie S. Mereson: --Because here the legislature was reacting to a particular local problem. There was a local problem that did not need a general statute for other groups in the State. The problem here--
Sandra Day O'Connor: Isn't it a dangerous precedent to let the legislature tackle a so-called accommodation by singling something out like this, as opposed to passing a neutrally applicable law?
Julie S. Mereson: --There's no need for a broader law, and no, I don't think that it's dangerous for the reason that when you need accommodation sometimes you have a specific problem. The burden that were on... that were on the Hasidic parents and children of this community is not a burden that was shared by the rest of the State or the rest of the country.
Antonin Scalia: Ms. Mereson, doesn't the legislature always single out a school district? Doesn't it create... I thought from Mr. Lewin's description that it always creates school districts single case by single case.
Julie S. Mereson: When there needs to be new lines drawn other than the historically existing school districts, yes.
Antonin Scalia: On the basis of any general criteria, or on the basis of whether a particular group seems to be a community? I assume that's how they do it, isn't it?
Julie S. Mereson: Well, normally these special lines that are drawn by the legislature are called special acts school districts, and they are coterminous with institutions, so they would be created in response to a need for them, which is what happened here. There was a need for this, because what the State was faced with was an impasse between the parents of handicapped students living in the village and their school district, which is Monroe-Woodbury, over whether these special needs--
Antonin Scalia: Ms. Mereson, does the need carry the State as far as the State went, because even assuming that it's appropriate for the State to deal with these problems on a case-by-case basis, the State could have done so here, I presume, by a statute simply mandating that some kind of a special school in a neutral place be set up by the existing school district to accommodate these particular children, and by doing that it would not have involved the... in effect the identification of the governance of the school district with a particular religious sect. The State could have done the former, couldn't it?
Julie S. Mereson: --I don't think... they could have done the former. They could have done anything. The problem with the former is that there would be more of an argument to be made that in this impasse, in this dispute between the Monroe-Woodbury School District and the Kiryas Joel parents, that they would be taking sides more by taking the discretion that Monroe-Woodbury enjoys along with the rest of the school districts of the State of New York in terms of where they choose to apply--
David H. Souter: Well, there might have been... there might have been an argument that they were taking... I don't... I'm not sure that I think the argument is any stronger than the argument that they're taking sides here, but leaving that aside, there may have been that argument but there wouldn't have been an Establishment Clause issue, would there?
Julie S. Mereson: --I think there would have been?
Ruth Bader Ginsburg: Why?
Julie S. Mereson: In fact, you can make the exact same arguments that they're making here.
Ruth Bader Ginsburg: Wasn't that Judge Kaye's position in the New York Court of Appeals, though? Isn't... didn't she say you could have the same facility, only it would be under the aegis of the Monroe-Woodbury School Board and not the Kiryas Joel Village School Board, and that would be all right? Wasn't that essentially her position?
Julie S. Mereson: That was her position, but we disagree with her position, because if the New York State legislature and Governor enacted a law that said to Monroe-Woodbury you must relinquish your discretion and you must provide a neutral site against your judgment, against your wishes, to these religious people in this religious community, there would be people back in court saying, you have favored the Satmar sect, you have... you are advancing their religion by--
David H. Souter: Well, they would have, but you would have had a much easier case, wouldn't you?
Julie S. Mereson: --Well, I actually believe we would have had a harder case.
Anthony M. Kennedy: Well, but they would not have been able to say that the solution to the accommodation that you adopted was the transfer of power, governmental power, based on the religious beliefs and practices of the recipients.
Julie S. Mereson: We believe you still can't say that, because the transfer of the power was not to any religious organization, it was to the residents of a community.
Anthony M. Kennedy: Well, is that a question of fact?
Julie S. Mereson: Yes. That is in the record. The power was given by the statute to the residents of the community, and not to any religious organization.
Anthony M. Kennedy: Yes, but I had thought that it was the whole basis of both sides in this case that the conceded fact that the rationale for the drawing of the geographic lines of this district was the religious beliefs and practices of its residents, pure and simple.
Julie S. Mereson: There's one factor in between, which is that this is a cultural and sociological problem which arose out of these people's religion, so it's one step removed from the religion. What the State did was to address the cultural, secular, sociological side of the problem without preferring or promoting or advancing the actual religious tenets.
John Paul Stevens: Would you explain that a little more? You started to answer a question earlier, what the need was that the State was accommodating. Would you state again exactly what the need for this legislation was?
Julie S. Mereson: Certainly. There was a deadlock. It was an absolute deadlock between the parents of disabled, handicapped children who need specially appropriate educational services--
John Paul Stevens: Which were being provided.
Julie S. Mereson: --Which were not being provided... the parents felt--
John Paul Stevens: Which were available. Let me say, which were available.
Julie S. Mereson: --They were not appropriate according to these parents. They felt that these services were not being provided by Monroe-Woodbury, because the services that they were offering was not appropriate to these children's unique and special needs. They did not address--
John Paul Stevens: In what respect were the services inappropriate? I don't understand that.
Julie S. Mereson: --They felt that they were not addressing their unique vulnerabilities and needs because they come from a very insular environment, where they don't have television, they don't have radio, they don't have English language newspapers, they don't watch a cartoon, and when they go to the Monroe-Woodbury Schools with children who dress differently, who speak differently, these... the Kiryas Joel children don't particularly speak English. Their first language is Yiddish. This environment was so alien to them that they felt that it had a very negative effect. The emotional and psychological trauma that they suffered had a very negative effect on their educational process, so much so that they felt that that overpowered their need to be in school.
Speaker: The "they" you're referring to is the parents or the children.
Julie S. Mereson: The parents of these children, and they took them out of the school, so when this came to the State... this did not come to the State in the first instance. This problem was with the parties for a while. It went through the entire appellate court process, and at the top of the process--
John Paul Stevens: But the critical fact is, they didn't want these children exposed to these out-of-district influences that they would be exposed to out of the district.
Julie S. Mereson: --It was more than that, Justice Stevens. It was that they felt that the insularity of the community did not permit them to participate in the education in such a way that they could get anything positive out of it, because they were so traumatized by being in an environment that was alien to theirs.
William H. Rehnquist: Thank you, Ms. Mereson. Mr. Worona.
Jay Worona: Mr. Chief Justice, and may it please the Court: This case is about the limits of the Establishment Clause. The respondents urge this Court to affirm the decision below because the statute clearly violates that clause. As this Court has explained, a statute cannot be divorced from the circumstances existing at the time it was passed. The circumstances leading to the enactment of the statute before this Court today at the Village of Kiryas Joel demonstrate that the law was enacted in direct response to the New York State Court of Appeals' decision in its Monroe-Woodbury v. Wieder decision, where the Village of Kiryas Joel residents unsuccessfully sought to acquire a religiously segregated environment in which their children could receive special education services.
Antonin Scalia: Excuse me, you say religiously segregated. That sort of begs the question, doesn't it? It was culturally segregated, certainly, you might say linguistically segregated, but why necessarily religiously segregated?
Jay Worona: Well, when I refer to religiously segregated, Your Honor, I'm referring to the fact that this community is comprised exclusively of Satmar Hasidic individuals, and as Mr. Lewin indicated, the boundary lines were specifically drawn to only include those members.
Antonin Scalia: Well, but... well, you could say it was drawn to include those members, or you could say it was drawn to include people who speak Yiddish. Their customs spring out of their religion, but the State was accommodating primarily their customs, wasn't it?
Jay Worona: That's correct, Your Honor, but--
Antonin Scalia: Was it accommodating any of their religious practices, their religious ceremonies, anything of that sort?
Jay Worona: --Well, Your Honor, all I can respond to is that in the Monroe-Woodbury v. Wieder case before the appellate division, the residents of the Kiryas Joel Village maintained a free exercise claim for their need to acquire a religiously segregated environment for the children to be educated.
Antonin Scalia: I think what they were saying is, if you do not make accommodation for a culture which springs out of the religion, you are discriminating against the religion, but that isn't the same thing as saying cultural accommodation is necessarily accommodating their religious beliefs. I don't see how the State is accommodating any of their religious beliefs. It doesn't allow any worship in this school district, does it?
Jay Worona: Not that I'm aware of, Your Honor. Of course, that's not the issue before this Court, but as the court of--
Ruth Bader Ginsburg: That would be a different challenge. There's a facial challenge here. You're saying, even if they follow all the rules of the State of New York for secular education.
Jay Worona: --Yes, Your Honor, because the specific issue before you today is not what the residents of Kiryas Joel may be doing constitutionally or unconstitutionally, it's what the State of New York did when it enacted this particular piece of legislation. And in response to Justice Scalia's question from before, in the court of appeals decision in Wieder, the Monroe-Woodbury Central School Districts, the court acknowledged, undertook efforts to accommodate the cultural bilingual needs of the Satmar community, including the employment of Yiddish-speaking teachers and the provision of reports for the Satmar parents in Yiddish, so there were accommodations to that specific cultural basis that were made.
Antonin Scalia: The parents didn't think it was enough.
Jay Worona: Well, that may be true, Your Honor, but when we look at a statute to determine whether we are responding to bilingual, bicultural needs of a community, and we see a school district has in fact responded to those needs, certainly we cannot ignore that particular fact.
Antonin Scalia: You're saying the record shows that it is responding to the religious needs. In what way?
Jay Worona: Well--
Antonin Scalia: I really don't understand that. It seems to me they're responding to purely cultural needs, special language, special isolation from modernity such as television, and so forth.
Jay Worona: --However, Your Honor, in the court of appeals decision in Monroe-Woodbury v. Wieder, we saw that the village residents were willing to forego bilingual services as long as they acquired a segregated environment for their children to be educated--
Speaker: Well, let's start with the--
Jay Worona: --and I think that's a very big distinction with a difference. Yes, Your Honor.
Ruth Bader Ginsburg: --Can we start with the village, the creation of the village?
Jay Worona: Yes.
Ruth Bader Ginsburg: That came up in Mr. Lewin's argument. Are you acknowledging that the creation of that village was consistent with the Establishment Clause? There was no violation of the Establishment Clause for the... whatever it was, the zoning authority to issue this decision giving approval... the supervisor of the Town of Monroe giving approval under the New York laws on the creation of the village, to the creation of the Village of Kiryas Joel.
Jay Worona: Well, we are not conceding that the village was necessarily incorporated in a constitutionally permissible manner. Certainly, that's not directly before this Court. I agree with Your Honor's question before, which was addressed to Mr. Lewin with respect to the village law in New York State, which does not allow individuals to contest the formation of villages in the same grandiose manner that other particular municipalities may be contested.
Ruth Bader Ginsburg: But there was a contest at least to the extent that the original boundaries proposed were much broader than just the Satmar community, and there was opposition to that--
Jay Worona: That's right.
Ruth Bader Ginsburg: --And they were cut back to the... but the original proposal was for a larger village that would incorporate more than just this one community.
Jay Worona: That's correct, Your Honor, but the reality that we cannot ignore is that those boundary lines were specifically drawn to only include members of the Satmar Hasidic community. In the petition which is before you on Joint Appendix page 10, in the first full paragraph, the supervisor of the Town of Monroe in signing this petition indicated that the residents are and will be all of the Satmar Hasidic persuasion. He indicated that the sociological way of life for the Satmar Hasidim is one of disdained isolation from the rest of the community.
Ruth Bader Ginsburg: Well, let's take it that we have the village as it is. Would there be any constitutional problem if the same facility existed but it was operated by the Monroe-Woodbury School Board instead of the elected people from this particular community?
Jay Worona: If that facility, Your Honor, was based upon secular concerns and not solely religious concerns, I suppose that facility would be constitutional permissible.
Ruth Bader Ginsburg: Make it the same facility that now exists, except that instead of having a Kiryas Joel county or village school board you have the same Monroe-Woodbury School Board that is administering all the other schools in the Monroe-Woodbury area. Everything's the same, except the board that runs it is different.
Jay Worona: Your Honor, if I may respond in two parts, firstly, the establishment of that type of a school for these individuals would certainly not have an element that is involved in this particular case, which is that we would not be imbuing a religious community with governmental powers and functions, and we certainly would not be--
Ruth Bader Ginsburg: Well, do you see a difference... you keep saying, religious community. The cases that are closest to this one, the precedents that are closest, as you know, involve a religious body being given the authority, a church body, where here it's citizens of a village who belong to a particular religious community but are not themselves church, synagogue officials. Isn't there a distinction... you keep talking about a religious community. If the power were given to the board of a religious community, then you would have a clear case.
Jay Worona: --Well, I think we do have a clear case. I agree with the point that you're making. I think that in order to analogize this particular community to that of a church, we do need to look at the entire context in which this particular statute was enacted. Mr. Lewin even in his reply brief has acknowledged that this particular section... or this particular statute is in fact placing the Satmars in a position where they would have been without the statute--
William H. Rehnquist: What you're saying is that the Satmars, because they all live together, can't exercise the ordinary kind of secular authority that any other group living together could.
Jay Worona: --No, that's not what we're saying.
Speaker: Well, it seems to me you are.
Jay Worona: No. We're asking this Court to examine the context in which this particular piece of legislation was established. If a group of folks happen to reside in an area, and it was mere happenstance that they simply were able--
William H. Rehnquist: Supposing a large group of Roman Catholics lived close together in some part of New York State, and they decide they would like a separate school district, and they go through the normal forms of it, an the State legislature creates a special act school district, is that suspect under the First Amendment?
Jay Worona: --It might be. I don't think it would necessarily be unconstitutional, if indeed the circumstances surrounding the passage of that legislation are not as they are in this particular case, Your Honor.
William H. Rehnquist: Well, suppose they said, we'd like to have our own school district. We think pretty much alike on school issues, and we just want our own school district--
Jay Worona: Well--
William H. Rehnquist: --and they're all... 99.9 percent of them are Roman Catholic.
Jay Worona: --I think the major problem that we have in this particular case is that--
William H. Rehnquist: Well, will you answer my question?
Jay Worona: --I will try, Your Honor, and forgive me--
Speaker: Try right away, will you?
Jay Worona: --Yes. [Laughter] I don't think it would necessarily be unconstitutional for a group of individuals who happen to be of one particular religious persuasion to be granted the authority of having a school district within their community. It's very different in this case, because we have a situation where New York State specifically decided to provide this community with the ability to run a segregated school district, and that is--
David H. Souter: But isn't... wouldn't New York also specifically provide a... the same authority to the Chief Justice's Roman Catholic group? Of course it would. If the New York law is otherwise the same, and you can only charter school districts on a case-by-case basis, it would do the same thing there that it would do here.
Jay Worona: --Well, that's precisely the point that the respondents are making, and we believe--
David H. Souter: But isn't the difference that there wouldn't be any alternative to having a school district in the Roman Catholic case, where there is an alternative to having this school district in this case?
Jay Worona: --That's correct, because this school district, Your Honor, was one of a... was part of an existing school district at the time, which I think is a very big distinction, and indeed, the establishment of this school district I think would violate some fundamental principles of the Establishment Clause.
William H. Rehnquist: Well, are you-- --Supposing that my Roman Catholic hypothesis, they want to break away from the school district they're in, just like the people did here?
Jay Worona: If they wanted to break away for the reason of acquiring governmental powers and functions to live an insular life style in conformity with their religious precepts, I suppose that would be unconstitutional as well, Your Honor.
William H. Rehnquist: Well, is it a necessary element of your answer that they want to live an insular lifestyle? What's that got to do with the First Amendment?
Jay Worona: Well, it has to do with the First Amendment in that I don't think this particular culture can be divorced from its religious traditions and practices.
Ruth Bader Ginsburg: How would you distinguish this from, say, just a community in Utah, where the people in a village are all coreligionist?
Jay Worona: As I understand the formation of Utah, certainly the United States Government required the Mormons, who were predominantly occupying the State prior to it becoming a State, they were required to put special provisions in their Constitution to protect the United States from acquiring a State that would be arguably theocratic, and the difference, I think, is that if somebody happens to move into a place where there isn't... there is not already an existing school district that is serving them, we have a situation where there is a secular need. They need to be served. They need to acquire a school district. Here, the Kiryas Joel Village residents were already part of the Monroe-Woodbury Central School District.
Antonin Scalia: That's the problem. They did it too late. If they'd only gone out in the wilderness where there was another-- [Laughter] Where there was not another school district near them to start off with, they would have been okay.
Jay Worona: I don't know if--
Antonin Scalia: So all they have to do is move further out into New York State and they can start their own... they'll do it if you say that's okay, I'm sure.
Jay Worona: --Well, Your Honor-- [Laughter] As I understand it, Your Honor, every single... every single parcel of land in New York State is presently occupied by the boundaries of a school district, so I don't think that frontier type of a scenario would necessarily exist.
Anthony M. Kennedy: Is it your contention that one of the principal, or maybe the only purpose of forming the new district was to transfer powers to people by reason of their religious beliefs, or is that not your contention?
Jay Worona: I'm sorry, Your Honor, could you repeat that question?
Anthony M. Kennedy: Is it your contention that one of the principal purposes of this statute was to transfer governmental power to a group of persons by reason of their religious practices and beliefs?
Jay Worona: I suppose the answer to that question is, we believe that a political constituency defined along religious lines has in fact been established by the statute, Your Honor. The particular community of individuals who are devoutly religious were imbued with governmental powers and functions to allow them not simply to be exempted, as this Court has in the past accepted, to privately pursue their religious perspectives, but rather, New York State has offered its arm to these individuals to be able to run a school district with full governmental--
Anthony M. Kennedy: For what reason? Why a town but not a school district? May I just finish? For what purpose?
Jay Worona: --For what purpose what, your Honor?
Anthony M. Kennedy: For what purpose was the power given to them?
Jay Worona: To allow them--
Anthony M. Kennedy: Because it seems to me, otherwise you cannot distinguish your case from the Chief Justice's hypothetical.
Jay Worona: --Well, I think the purpose certainly here is one of segregation along religious lines. It was the pursuit of that particular principle that was primarily sought after, and indeed was advanced by this legislation.
David H. Souter: The... aren't you giving two different answers? I mean, you're giving a purpose answer to Justice Kennedy, and a moment ago you gave a no alternative answer to me when we were discussing the problem posed by the Chief's hypothetical on the Roman Catholics. Is the problem, as you see it, that there was an express purpose to transfer power to a religious group, or is the problem here that there were alternatives to doing that, to accomplish the same result, and they didn't avail themselves of the alternatives? Which is it?
Jay Worona: Well, we're not suggesting it's necessarily the latter. I think having the latter present will perhaps provide a greater effect of unconstitutionality of this particular piece of legislation, but we are maintaining certainly that the legislature designed this particular piece of legislation to allow this particular religious community to dictate what educational services would be provided in conformity with their traditions and beliefs.
Ruth Bader Ginsburg: I don't see why that isn't present in a good many communities, as Justice Ginsburg suggested, in the State of Utah, where members of the Church of Latter Day Saints live in certain communities and want to have their own school districts, and they do, so under your view, all those would be invalid.
Jay Worona: No, I don't believe they would all be invalid, Your Honor, I believe that this case can only be analyzed in looking at the entire context in which this particular legislation was effectuated. If, indeed, we have a community, as I answered the Chief Justice before, that happens to be of a particular religious persuasion, which happens to have a school district, that doesn't necessarily make it constitutionally infirm. The constitutional infirmity here is by setting up political constituencies defined along religious lines--
Antonin Scalia: Well, it's defined along cultural... let me give you a two-part hypothetical. Suppose you have a community divided by railroad tracks. One side of the community is a very swinging, modern-type crowd, and they like avant-garde education, sex education and all that. The other side of the tracks, influenced by a reaction to modernity, feminist aversion to obscenity and so forth, they want old-fashioned education. They can have two school districts if the State sees these people want different things in education? That's okay?
Jay Worona: --Well, I presume in your hypothetical there would not be religious beliefs that were present.
Antonin Scalia: Right.
Jay Worona: Okay. I think that we would not be dealing--
Antonin Scalia: That would be okay.
Jay Worona: --with an Establishment Clause--
Antonin Scalia: Right. Now, my second hypothetical is-- [Laughter] --they have the same beliefs, the same... some like sex ed, some don't. However, the reason for it is not feminism, or avant-gardism, the same cultural preferences spring from their religious beliefs. Then you couldn't do it, right?
Jay Worona: --I suppose there would be an Establishment Clause problem.
Speaker: Oh, no.
Jay Worona: Our position is not based upon anything but the fact that there is an Establishment Clause at this point.
Antonin Scalia: You cannot accommodate any... any beliefs that spring from religious motivation?
Jay Worona: No, that is not our position, Your Honor. We believe that accommodation is certainly acceptable. This accommodation, however, will in fact place the balance off the kilter of the scale.
Ruth Bader Ginsburg: Was Judge Kaye's accommodation okay? That is, she said in her most recent opinion that if you... as I understand it, you had this neutral facility, same facility, but it was run by the Monroe County School Board. That accommodation would be okay.
Jay Worona: If, in fact... yes, Your Honor, if in fact that accommodation was in conformity with this Court's pronouncement in Wolman v. Walter, which dealt with the provision of neutral sites to children who were attending parochial schools.
Ruth Bader Ginsburg: Well, let's take the if out of it. Just... everything that we have here, except that it's the Monroe County School Board, not a separate school board, that's running it. If that's okay, then I think what you're suggesting is that we have to look to the purpose... one of the hardest problems as I see it is that these people are citizens of a community, and they're elected the way representative elections are conducted, but they're also members of a tightly knit religious community, and your argument seems to hang on equating them, saying that they can't take off their religious hats when they're elected to be members of the school board. I think that's the essence of your argument.
Jay Worona: Well, it really isn't, Your Honor. I think the essence of our argument, if we were looking at Lemon v. Kurtzman and its three prongs, would be the second prong, because chapter 748 of the laws of 1989 communicates a message of endorsement to the public, and they may fairly understand that the purpose of this act was to accommodate Satmar separatist beliefs, and the public perception of endorsement is reinforced by this statute in that it's not a statute of general applicability, as many justices have already noted.
David H. Souter: Well, if the New York law read that school districts will always be coterminous with religious districts, would you have an objection?
Jay Worona: With religious districts, Your Honor?
David H. Souter: I'm sorry, with municipal districts.
Jay Worona: No. I think that would be a secular particular law, and if in application there was a problem, certainly there could be a challenge at that particular time. Here, we're dealing, as I started to indicate--
David H. Souter: Would you have a challenge to it?
Jay Worona: --Would I have a challenge? Not based upon this particular facial challenge, Your Honor. The respondents in this action believe that this particular action of the New York State legislature, if precedentially allowed to exist in this Nation, will not only politically fragment our Nation, but will place children in a position of understanding that the way we deal with diversity and respect for ourselves religiously is to have Government separate people along religious lines, and that is something that we don't think is palatable for the country or consistent with--
John Paul Stevens: Let me test that if I may. Is it not true that this district accepts students from outside the particular neighborhood?
Jay Worona: --That's correct, Your Honor, but our understanding, and it's in the record, all of those children are also members of the Satmar community.
John Paul Stevens: Do you know what language the teaching is conducted in in this district?
Jay Worona: I do not know. In the petitioner's papers, they indicate that they are maintaining a secular program, but since that is not the issue before the Court, I do not have any personal knowledge of that.
John Paul Stevens: Is there any New York law that requires that school districts do their teaching in the English language?
Jay Worona: That... that--
John Paul Stevens: That English language be taught in schools in New York?
Jay Worona: --Not that I am aware of, particularly, but of course, that's not the issue before us. The issue is not what, again, Kiryas Joel may be doing in maintaining their program, but rather what New York State did when it established this particular school district. I want to make one other point that I think is very relevant, because I think we all are here today to talk about the children, and I think one of the things we cannot ignore is the fact that this particular statute in essence precludes these children from acquiring the protections of both Federal and State laws that serve disabled children. Those laws are predicated on the premise that those children must be mainstreamed as much as possible, and as much as feasible. These children are in--
John Paul Stevens: That's a statutory violation. I mean, you can bring another suit for that, I suppose. Let me ask you this, Mr.... let me ask you this question about our Federal Congress. I'm reading from the Congressional Record in which the Senate Majority Leader, Mr. Mitchell, is describing the legislative schedule for the 102nd Congress in 1991. He lists the nonlegislative periods. He lists Presidents' Day, Lincoln's Birthday. March 29th, Good Friday. March 30th, Passover. March 31, Easter. September 9, Rosh Hashanah. Is all that unconstitutional?
Jay Worona: --No, I don't believe so, Your Honor.
Speaker: Why not?
Jay Worona: Well--
John Paul Stevens: It's just accommodating the religious practices of people for Congress to go out of session in order to accommodate people who want to observe Good Friday or Rosh Hashanah. Why isn't that unconstitutional?
Jay Worona: --Because we're not imbuing any particular governmental functions on any particular religious person to carry out those... his religion. We are rather allowing people to privately pursue their religion.
Ruth Bader Ginsburg: But you can have a minister be a member of a legislative body.
Jay Worona: Yes, Your Honor.
Ruth Bader Ginsburg: And so that's... and so, why can't you have a school board composed of people of a certain religion who are not the political... who are not acting in their capacity as a governing body of a church?
Jay Worona: Well, we are not, again, Your Honor, maintaining that our argument is predicated upon a belief that the Satmar religious leaders will necessarily be incapable of exercising governmental powers and functions. We maintain that that is true, but that's not the basis upon which our argument lies. Rather, we are indicating that we are taking--
Ruth Bader Ginsburg: You maintain that is true as opposed to, say, a Catholic priest serving as a legislator?
Jay Worona: --No, Your Honor, but in this particular record, when the school board was first established, a gentleman tried to run for the school board against the directives of the Grand Rebbeh, and as I under--
Ruth Bader Ginsburg: Maybe you have some kind of an as-applied challenge. There's been a lot of things outside the record that have been suggested, that the claim that this school is run in a secular way and that the school board is acting as any secular school board would operate, that that's not true. That would be a different case, not the one that's here. This is a facial challenge, right?
Jay Worona: --Well, that's correct, Your Honor, but we think the record is very clear about the points that you are maintaining. For example, prior to the establishment of this school district, the Monroe-Woodbury Central School District urged the Governor to sign this legislation, and they indicated that if a non-Hasidic child requiring regular education moved into the Kiryas Joel School District's geographic boundaries, and then... this is on page 2 of the Joint Appendix, and this is virtually impossible. The child would be tuitioned to Monroe-Woodbury or another district. The legislators who passed this action also were well aware--
Antonin Scalia: It seems eminently reasonable. He would have a cultural problem in the Kiryas Joel district, just as the Kiryas Joel children have cultural problems in the other district. Why do you find that so extraordinary?
Jay Worona: --Because if we look at what was provided... and Your Honor is quite correct, we are dealing with a situation here where looking at disabilities laws is a Federal statute and would not necessarily be a constitutional impermissibility. However, if these children are incapable of acquiring their rights under Federal and State law, and we understand why, and that is because their parents wished to maintain a lifestyle, then--
Antonin Scalia: It's like a parent in the hypothetical I gave you who wants her child to have sex education and seeks permission from the school district on the one side of the tracks to send the child to the school district on the other side. What's so wrong about that?
Jay Worona: --Well, again, I think the principal point of where we maintain our argument, which a crucial distinction is that there is not an imbuing of governmental powers and functions upon an individual in that situation. There is simply--
Antonin Scalia: Isn't there--
Jay Worona: --that is provided.
David H. Souter: --Isn't there also another difference, and that is the Monroe-Woodbury School District didn't have a plan to tuition-out every student from this community, whereas what you have just read to us sounds like a plan to tuition out every one who is not a member of the community.
Jay Worona: Right. I think that is a crucial distinction, Your Honor, and I think that certainly under New York State law, Monroe-Woodbury could have provided the benefits that are being sought here. Indeed, when they began this litigation in Monroe-Woodbury v. Wieder, the case that was looking for a neutral site, they maintained that they could not serve these children any other place but the public schools. The court of appeals, New York State's highest court, ruled that that was not necessarily true. They also maintained that there was some constitutional infirmities with segregating these children along religious lines, and now they stand before you today and indicate that it is not necessarily unconstitutional to do the same thing by having New York State segregate children along religious lines.
Ruth Bader Ginsburg: Mr. Worona, on the tuitioning out, do I understand correctly that the people who tuitioned out are the regular students for whom there are no facilities, but if they were someone... a disabled child who was from... who was not of the Satmar community, that person wouldn't be tuitioned out, would that person?
Jay Worona: Well, Your Honor, they can by this statute have a regular school. The... everyone envisioned that this school--
Ruth Bader Ginsburg: But I'd appreciate an answer to that question. Suppose there is a child in the school district who is not of the same religion, and who is disabled, that child would not be tuitioned out, would that child, under the--
Jay Worona: --Not necessarily, but of course we maintain that everyone understood quite well that that would not happen. I'm sorry, Your Honor.
David H. Souter: --Then the distinction that I was making wouldn't apply.
Jay Worona: Well--
David H. Souter: I thought you agreed with the distinction I was making, but as I understand your answer to Justice Ginsburg, that answer wouldn't be apposite.
Jay Worona: --Well, what we are asking this Court to look at--
David H. Souter: Well, regardless of what you're asking the Court, what is the answer to my question?
Jay Worona: --Well, could you repeat the question, Your Honor?
David H. Souter: Well, I thought your answer to an earlier question was that there was a distinction to be drawn between a plan to tuition out all non-Hasidic students, as distinct from a plan to tuition out of the main school district all students who were Hasidic, and as I understand your answer to Justice Ginsburg's question, the plan that you referred to on page, I think 10 of the record, was simply a plan to tuition out all nondisabled students.
Jay Worona: Well... yes.
William H. Rehnquist: Is the latter correct?
Jay Worona: That is correct. However, I think the--
David H. Souter: Then the distinction I was drawing does not apply.
Jay Worona: --Well, we believe it does, because even though those are the words in this particular paragraph, I think the context of those words, when it says virtually impossible, is referring to the fact that no other non-Satmar individual would be residing in that community. I don't think that's really in dispute here. Mr. Lewin has admitted that most of the residents, or all of the residents, are members of the Satmar community. I think the essential question that needs to be asked, and if, indeed, the Kiryas Joel Village School District was indeed capable of becoming as heterogenous as the Monroe-Woodbury Central School District, what benefit would have actually been afforded to these individuals? The statute would have had absolutely no purpose. So I think we can all move on from that particular issue and answer the question as to whether it's a violation of the Establishment Clause, not whether it was indeed capable of being as heterogenous as the school district that it was seceding from.
David H. Souter: Let me ask you a different question going back to something you said a few moments ago, and I'm not sure that I understood you. Did you indicate a few moments ago that you thought the suggestion which I guess was made by Chief Judge Kaye that the State could have set up a separate neutral place for the education of these handicapped children alone would have been unconstitutional?
Jay Worona: It could have been unconstitutional. I don't believe it necessarily would have been unconstitutional. What we were indicating is that it would still have to be in conformity with this Court's pronouncements in Wolman v. Walter.
William H. Rehnquist: Thank you, Mr. Worona. Mr. Lewin, you have 2 minutes remaining.
Nathan Lewin: With respect to Judge Kaye's suggestion, Justice Souter, we, in addition to thinking it's the wrong test, we think it's not clear that that's the least restrictive alternative by any means. Providing responsibility, as well as authority, is what this statute did, and what is one going to conclude, what is the least restrictive alternative? Monroe-Woodbury School District itself prefers this solution, which apparently it believes is less restrictive in terms of the overall school district, than the solution of forcing them to provide neutral sites. Justice Kennedy asked about the purpose, and I think that clearly distinguishes this case and makes it so much stronger than the hypothetical that the Chief Justice suggested. In this case, there are a body of disabled students. In the Chief Justice's hypothetical, it is a community that wants to have its own school district, and there's nothing unconstitutional, even if they're religious, and we agree. But all the more so is that true if there is a reason for the legislature to deal with a group of disabled students, and in this case, the record is clear from the respondents' own expert, Joint Appendix page 88. She says, "These parents kept their children out of the public school to avoid the trauma they believe the children would suffer because of their cultural uniqueness. " That's what their own expert said in an affidavit that's in the record. And in response to Justice O'Connor with regard to other... other school districts, the complaint itself alleges in paragraph 63 of the second amended complaint, at page 62 of the appendix, "the legislature has exercised this authority most commonly for the purpose of creating a public school in the case of.... "
William H. Rehnquist: Thank you, Mr. Lewin.
Nathan Lewin: Thank you.
William H. Rehnquist: The case is submitted--