Three Strikes, But Not Out

Religious groups seeking more government support for parochial schools took it on the chin Tuesday when the U.S. Supreme Court refused to hear yet another case arising from the Kiryas Joel controversy.

10/15/99
Washington Correspondent
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Three Strikes, But Not Out Religious groups seeking more government support for parochial schools took it on the chin Tuesday when the U.S. Supreme Court refused to hear yet another case arising from the Kiryas Joel controversy. And a second decision may have knocked some of the wind out of the effort to provide tuition vouchers for students at parochial and private schools, a top priority for Orthodox groups. The Court voted 6-3 not to review a lower-court decision invalidating New York’s latest attempt to create a school district to serve the chasidic community of Kiryas Joel in upstate Orange County. That effectively knocked out the state’s third Kiryas Joel effort. The first effort was struck down in 1994, when the justices ruled that the creation of a special district to serve disabled children in the Satmar enclave favored a particular religious sect. A second attempt was axed by the state’s highest court. New York officials had argued that the third law established “religiously neutral criteria” for the school district, but a state appeals court disagreed, and the U.S. Supreme Court chose not to take issue with that ruling. Justices Clarence Thomas, Sandra Day O’Connor and Antonin Scalia voted to hear the case. Four justices are needed to bring a case before the court. “We’re very disappointed; we had hoped the Court would take this case,” said Abba Cohen, Washington director for Agudath Israel of America, an Orthodox group that represents the interests of Orthodox schools around the country. “The real tragedy here is that the children in religious schools are not being served adequately through the federal special education program.” Cohen said that his group will focus on changing the Individuals with Disabilities Education Act (IDEA), the federal legislation dealing with programs for disabled children. “At this point IDEA is so inadequate in regard to serving religious and private school kids. That’s why the people of Kiryas Joel had to resort to this kind of solution in the first place,” Cohen said. Marc Stern, legal director for the American Jewish Congress, welcomed Tuesday’s decision but warned that “it is not the last gasp for Kiryas Joel.” In fact, he said, New York lawmakers passed a fourth Kiryas Joel law earlier this year in anticipation of a negative Supreme Court decision — this one allowing up to 30 small towns to set up their own school districts based on voter referenda and the decisions of school superintendents. That law, he said, will undoubtedly trigger a new round of court fights. In fact, he said, the expectation of another legal challenge was probably a factor in the Supreme Court’s decision not to hear the current case. “They probably anticipated that if they struck the statute in this case, it wouldn’t end because there’s another one right behind it,” he said. “So it didn’t make sense to hear this one.” The State’s effort to accommodate Kiryas Joel residents and the courts, he said, is now “driving educational policy in New York. It’s the tail wagging the dog.” Joseph Waldman, a leading Kiryas Joel dissident, said he was “jubilant” about the Court’s refusal to take the case. He challenged the motives of promoters of the special school district, citing a 1997 Supreme Court decision allowing public school teachers to provide on-site special services to religious school students. “What this shows is that collecting federal money is their only motive, not educating children,” he said. “They had a chance to say ‘enough is enough’ if they were really interested in helping these children, but they didn’t take it.” Even some supporters of the Kiryas Joel effort say that local officials have not tried to take advantage of the 1997 ruling to provide services to disabled children — and thereby end the long-running legal and political battle. But Nathan Lewin, the constitutional lawyer who argued the case for Kiryas Joel, rejected the argument that a special school district was no longer needed because of the 1997 decision in Agostini v. Felton. “Agostini affects only part of what is provided in the Kiryas Joel schools,” said Lewin, who added that he was “saddened” by Monday’s decision. “It does not provide for a year-round program, for instance.” And that decision, he said, permits local school boards to provide the services on-site, but doesn’t compel them to do so. Lewin agreed with the assessment that the most recent New York law on the subject may have been the “deciding factor” in this week’s ruling. In a second ruling, the justices declined to review a decision by the Maine Supreme Court allowing the state to exclude parochial schools from a longstanding voucher program. The case involves a law that provides school vouchers to help families living in rural areas. Originally, the law allowed parents to use the money at public, private or parochial schools. In 1981, the state, citing church-state considerations, wrote religious schools out of the program. The Maine program differs from voucher experiments in places such as Milwaukee and Cleveland because it is aimed at helping families with no ready access to nearby schools. Still, the High Court’s decision not to hear the case was a big setback to Jewish activists promoting vouchers for religious school tuition. “Obviously we’re disappointed,” said Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, a group that supports vouchers. “This is clearly a blow to the idea of vouchers being used in a parochial school context.” But he warned against reading too much into a decision, and said that the non-decision ups the ante in another case, Mitchell v. Helms, scheduled for a Court airing in December. That case involves programs that use government education funds to provide books, computers and other materials to private and parochial schools. Jewish groups that oppose parochial aid fear that case could touch off a major overhaul of church-state law by the Court. Strange Aid Debate The debate over this year’s foreign aid spending bill, which includes $2.8 billion in regular aid for Israel, but not the extra $1.2 billion promised to help pay the costs of the latest West Bank redeployment, is getting stranger by the day. This week lawmakers and pro-Israel activists were waiting for an expected presidential veto. Some of Capitol Hill’s strongest pro-Israel voices — including Sen.Charles Schumer (D-N.Y.) and Sen. Frank Lautenberg (D-N.J.) — are supporting the president, who insists the overall package is $2 billion short of what it will take to conduct U.S. foreign policy in Fiscal Year 2000. Republicans say the veto threat shows that Clinton and the Democrats who are supporting him don’t care about Israel. There are warnings that a delay could throw a monkey wrench in the “early disbursal” that gives Israel its economic aid money at the start of the fiscal year, not in the usual quarterly installments. Rep. Eliot Engel (D-N.Y.), one of Israel’s most vocal supporters in Congress, disagreed. “There just comes a time when those of us who support aid have to take a stand,” he said this week. “The Jewish members met and we agreed: this bill is an abomination, and we won’t let the Republican leadership blackmail us over aid to Israel.” He said the miserly appropriation would impair U.S. diplomacy in a number of areas, including Third World debt relief and anti-proliferation policy. “We spent billions and billions on the Cold War — and we’re about to throw it away by turning our backs on so many countries around the world,” he said. The real issue is the squabble over rigid budget caps and the GOP’s decision not to tap into the Social Security surplus - Congress’s time-honored way of making the budget numbers add up. “The Republicans are saying any extra money for foreign aid has to come from the Social Security surplus, and suddenly they are refusing to do that,” said a Democratic congressional staffer. “What they’re doing is setting up a dangerous confrontation between foreign aid and Social Security. It’s a clever move for those who oppose aid.” In the end, this source said, the confrontation can only boost anti-foreign aid sentiment among voters. Lost in the fray is the extra $1.8 billion Wye River appropriation, which the administration still hopes can be folded into a last-minute omnibus spending bill. But with Republicans playing the Social Security card and threatening big cuts to popular domestic programs as “offsets,” it could be harder than ever to get the extra foreign aid appropriation. Congressional officials have broached the possibility of a six-month postponement in the Wye money. U.S. Mideast envoy Dennis Ross reportedly told lawmakers last week that a postponement would be a disaster. Jewish and Christian groups that oppose the current peace process are lobbying against the Wye package because it gives money to the Palestinians and will help fund new Israeli withdrawals. The National Unity Coalition for Israel called the Wye aid an “ill-conceived pledge to Prime Minister Barak of U.S. taxpayer dollars, which would underwrite the giving away of Israeli land for more empty promises.” The Zionist Organization of America is opposing the Palestinian part of the aid but not the $1.2 billion for Israel. But the American Israel Public Affairs Committee (AIPAC) and groups such as Americans for Peace Now — unlikely bedfellows — are lobbying for the entire package. State Department Nod for DFLP The Clinton administration says last week’s decision to drop the Democratic Front for the Liberation of Palestine from its list of terror-sponsoring nations and organizations had nothing to do with Mideast politics. But some Jewish groups aren’t so sure. The decision, they say, was an obvious reward for the group’s recent decision to support Palestinian leader Yasir Arafat’s negotiations with Israel and an effort to bolster the standing of Palestinian leader Yasir Arafat. “The DFLP has not publicly renounced terrorism, and continues to shelter the DFLP killers of Americans and Israelis,” said Morton Klein, president of the Zionist Organization of America. “Before they’re taken off the list, they should be required to take specific action to prove they’ve permanently given up terrorism, such as surrendering the killer of Michael Nadler, one of the Americans who was killed by DFLP terrorists.” He said the State Department acted “to improve the image of Yasir Arafat by removing a member of the PLO from the list to make it easier to pressure Congress to give a billion dollars in aid to Arafat.” But supporters of the administration’s Mideast policy say the DFLP decision was a carefully calibrated inducement to other Palestinian groups to drop terrorist activities and join Arafat in negotiating with Israel. State department added several names to the terrorist rogue’s gallery, including the al-Qaida group run by terrorism mastermind Osama bin Laden. Still on the list: the Abu Nidal organization, Hamas, Hizballah, the Popular Front for the Liberation of Palestine, Islamic Jihad and a host of Islamic organizations, as well as two Jewish groups: Kach and Kahane Chai.

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03/06/2012 - 21:59

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