While Orthodox Jews generally never consider sending their
children to public schools, they do have occasion from time
to time to use the public schools -- specifically, the
public school buildings, when school is not in session.
Whether it be a yeshiva graduation ceremony, a Pirchei
Chanukah rally, a Bais Yaakov production, a special kinus
his'orerus, a Shabbos visit from a Chassidishe Rebbe
from abroad, a temporary relocation when a shul is
unavailable for use because of construction or natural
disaster -- often the local public school facility is the
most convenient (and sometimes the only available) site at
which these activities can take place.
But some or all of these usages of public school buildings
may now be in jeopardy, as the U.S. Supreme Court prepares
to issue a constitutional ruling on the rights of religious
groups to use public schools.
At issue in the case is an upstate New York school
district's policy barring religious uses of public school
premises. The plaintiff, a religious youth club seeking to
hold on-site programs for students after school hours,
argued that the district policy denying public school access
to religious groups violates those groups' constitutional
right to freedom of speech. In a 2-1 decision, the New York-
based federal appeals court rejected that argument, and
upheld the district policy. It is that ruling that is now
before the High Court.
Recognizing the possible implications of the case for the
Orthodox Jewish community, lawyers for the National Jewish
Commission on Law and Public Affairs (COLPA) and Agudath
Israel of America have submitted an "amicus curiae" (friend
of the court) brief urging reversal of the appeals court
ruling. The authors of the brief were the renowned
constitutional attorney Nathan Lewin, COLPA attorney Dennis
Rapps, and Agudath Israel of America attorneys Chaim Dovid
Zwiebel, Eytan Kobre and Abba Cohen.
Explaining the community's interest in the case, the brief
notes how "the burgeoning of the Orthodox Jewish population
over the past several decades has given rise to an
increasingly frequent scenario in which school districts are
approached with a request for the temporary use of their
buildings on Friday evenings and Saturdays by either newly
formed congregations that have no permanent home as of yet
or established synagogues that are undergoing structural
expansions or repairs. In addition, community-wide lectures
and symposia of a religiously inspirational or educational
nature are prominent features of Orthodox Jewish communal
life. In many instances [local public schools] are the only
neighborhood-based facilities capable of accommodating the
large turnouts these events draw."
The COLPA brief also notes that because Jewish law prohibits
travel by car on the Sabbath and holidays, when an Orthodox
congregation is temporarily unable to use its synagogue
building, its congregants will not be able to attend
services unless an alternate facility exists within walking
distance. "Hence," the brief notes, "the Orthodox Jewish
community has a special stake in ensuring that public school
facilities are accessible to religious groups for religious
gatherings."
Addressing the legal issue in the case, the COLPA and
Agudath Israel attorneys contend that while a school may be
selective regarding the types of subjects and speakers to
whom it opens its property, such distinctions must have a
reasonable basis. An absolute ban on any type of religious
usage, the brief argues, is inherently unreasonable,
particularly when such usage takes place on evenings and
weekends and serves the general community, thus bearing no
connection to the school's official function.
The Orthodox Jewish brief asserts that so long as public
facilities are made available for non-religious uses, their
use for religious purposes is compatible with the
Constitution's requirement of separation of church and state
and must therefore be permitted on free speech grounds. The
brief also urged the High Court to hold unconstitutional a
New York state law governing private use of public schools
that New York courts have interpreted as barring such use by
religious groups.
The justices are expected to hand down a ruling in the case
by the close of the Supreme Court's current term in June.
