There is one upstate place with a whole lot of clout in our region—the Village of Kiryas Joel. It votes as a bloc and wields that voting power like an electoral sledgehammer. But please don’t blame Kiryas Joel for its clout. The folks there are doing what every district in our region would like to do…. They’re using their political clout to get what they want.
WHEN I LEARNED that the legislation had been passed, I was flabbergasted, appalled—and a little chagrined and angry with myself. I had gravely miscalculated by viewing the bill as such a dead-on-arrival proposal that I really didn’t take it seriously. I felt as if I’d dropped the ball as the executive director of the New York State School Boards Association and let my members down.
Further, on a personal level, I was deeply offended as a committed 1960s civil libertarian. I intensely believe in both desegregation and church-state separation. I had grown up in West Virginia and had lived in a district that desegregated only after the US Supreme Court forced it to with Brown v. Board of Education in the 1950s. I had been riveted to the news media during the battles to open southern schools. I went to college in Washington, DC, and sat in the US Senate galleries and watched the Humphrey-Russell debates that led to the Civil Rights Act of 1964. Probably more important, I was one of the few Jewish kids in a steel town in West Virginia, and I knew what it was like to be discriminated against in school due to one’s religion. I understood how crucial it was to protect the right of all individuals to determine their own choices, and to not allow any group to make the determination for them.
The recently enacted legislation violated some of my core beliefs. It enabled a politically powerful group to determine that government funds could be spent to ensure that a religious group could be segregated from the broader community. I did not think it was relevant whether the source of the discrimination was outside that group or inside; the effect was the same.
I had left West Virginia and moved to New York to get away from actions that undermined desegregation and religious tolerance, and I was stunned that it was happening in New York, which I thought was the closest we had to a state that believed in the same things I did. I was especially shocked to see that this situation was being supported by both political parties and by a governor whom I revered.
As I pulled out of my driveway the morning after the vote, I began to work out a plan of action. It seemed obvious to me that the law violated the First Amendment to the US Constitution as well as the Blaine Amendment to the New York State Constitution. But the legal fight would come later, if necessary. First, I had to figure out the politics. How in the world had this stealth bill passed? It was my job as executive director of the School Boards Association to know the answer to things like that, and I didn’t have it, yet. I had struggled to make the association a player in Albany politics, and I felt I had fumbled.
The New York State School Boards Association, founded in 1896, was a $5 million not-for-profit corporation run by an elected board of directors. It had a membership of about 750 school boards, representing almost five thousand individuals, equivalent to one-half of the elected officials of the state. Its members each had an equal voice on policy issues; each had one vote in a governing body. Thus, the smallest district had the same authority as New York City. The political power of the association was directly related to the relationships its members had with the legislature and the press. It made no political contributions.
Let me take a step back. In order to understand the politics of public education, it’s necessary to understand that schools are essentially a business—a very, very big business.
New York State alone spends nearly $60 billion annually on education. That’s nearly twice as much as Coca-Cola grosses worldwide. It’s enough to buy every major league baseball franchise. And the education “industry” is loaded with tentacles and offshoots. Practically every kid in the country goes to school for ten or twelve years. Those kids go to school in buses owned by private contractors. They go to buildings built by private contractors and financed by public debt. They sit in chairs and at desks manufactured by private companies. They learn from things written on boards, projected on screens, printed into books, or accessed through computers—and all of those things were made by private companies. Millions of those kids are fed by private contractors with food supplied by other private companies (the contract to provide milk to a school district is enormous). The waste generated by those kids is carted off by private contractors. Those kids are taught by hundreds of thousands of professionals, all of whom make decent middle-class wages and most of whom have generous pension plans, more than eight weeks of vacation, and family health insurance, from which the insurance industry makes a handsome profit. The pension plans are serviced by powerful financiers. In other words, that little elementary school in your neighborhood may seem less complex than the million-square-foot corporation in the industrial park, but don’t be fooled; it’s part of a system that is every bit as complex, labyrinthine … and profitable.
Unlike other gigantic government programs, the cost of education is overwhelmingly raised and spent at the local level. In New York State, education funds are raised and distributed, more or less, at the discretion of school boards composed of people elected at what are supposed to be nonpartisan special elections. Being a school board member is not a full-time job, and none of the members are politicians in the ordinary sense. They think of themselves as members of the community since they do not run with political party labels like Republican or Democrat, and in fact are barred from doing so.
In my experience, most school board members conform to one of five distinct characters: Character 1 is just there to keep taxes low. Character 2 loves to hear him- or herself talk and to feel important. Character 3 thinks the school district ought to be teaching Mandarin Chinese and the details of Hiragana Buddhism to sixth graders, and that there should be a dressage team for ninth grade girls. Character 4 thinks the school should not teach students that animal species are created by a natural process of evolution. Character 5 is the parent of a child in a special population, and is there to assure that the child gets the services the parent thinks he or she needs. A school board contains people of several of these characters and attempts to come to a compromised consensus to keep the schools operating. So, while the individuals do unquestionably have competing agendas, the boards themselves are—theoretically, anyhow—there to advance a single agenda of advocating for schools and the kids.
When I took over the School Boards Association, it was a sleepy, poorly funded, poorly organized lobbying group that was forever steamrolled by the energetic, richly endowed, and brilliantly organized teachers’ union. Three years later, we had some clout in Albany, frankly because we were learning how to use public opinion and the media to advance our agenda and obtain fairly widespread and penetrating coverage. We never could have bought such coverage through any sort of formal advertising or public relations campaign. But we still didn’t have much money, certainly compared to our sometime adversaries in the teachers’ union, so we had to pick and choose our fights strategically and judicially. When I first heard of the Pataki-Lentol bill, it appeared to be something the teachers’ union would oppose, so I figured I’d let them fight that battle.
New York State United Teachers (NYSUT) was formed in the 1960s by Al Shanker and Tom Hobart to rectify the horridly inequitable pay scales and working conditions that were then in effect. It gained strength, power, and credibility after going on strike in New York City for several months and forcing the power brokers to play ball. And then it emerged as power broker in its own right. It became a major political campaign contributor, and not only in dollars and cents. It summoned thousands of teachers, through the largest phone bank in the state, to blast calls to lawmakers. It built a huge headquarters and hired hundreds and hundreds of people, all for the benefit of teachers (or, more accurately, their union).
The other major player in education politics was, of course, the New York State Education Department, overseen by the New York State Board of Regents, which dates back to 1794. Members of the board of regents are selected jointly by the two houses of the state legislature. It is the regents, not the governor, who appoint the education commissioner. Over the centuries, the board’s power has increased substantially, and it now oversees all education from birth to death, vocational rehabilitation programming, museums and cultural institutions, and most licensed professions.
In light of the passage of the Kiryas Joel legislation, however, I felt that my association needed to take its own stance and abort this monstrosity before it was delivered. The governor hadn’t signed the bill yet—nor was he likely to do so, I thought, as long as he knew what the bill was about. But I was also concerned about my board and membership, and how they would feel.
Of the approximately 750 school boards that belonged to the association, some were from tiny school districts like Raquette Lake with fewer than two dozen students, and some were from enormous districts like New York City, with well over a million students. As with most organizations of such diverse makeup, it was the middle-sized members that controlled the association—wealthy, suburban districts from places like Long Island and Orange County. In fact, Monroe-Woodbury was one of the association’s most active members. I was concerned that the district might be in favor of the bill, because I knew that the non-Hasidic citizens in the area resented the Satmar and I could easily see the Monroe contingent selling out the Constitution in order to get the Satmar out of their hair, despite the loss of significant tax revenue. What’s more, since I and several of the association’s board members were Jewish, I was concerned about being accused of starting a religious dispute with the Satmar.
Even more important, I was unsure what to expect from two prominent and powerful members of my board, Judy Katz from suburban Buffalo and Georgine Hyde of East Ramapo. Judy was extremely active on a number of western New York and national Jewish not-for-profit boards, many of which might have problems with the School Boards Association being involved in a lawsuit involving Hasidic Jews. Georgine was a survivor of the Auschwitz and Theresienstadt concentration camps and was very active in state and national discussions on the impact of the Holocaust. She was also the longtime school board president of East Ramapo, the district that had suffered its own battles with an active Hasid and ultra-Orthodox community over school finances and priorities. I knew it would take yet another act of courage for Georgine to be supportive of litigation.
I arrived at my office at 119 Washington Avenue in a state of brain rush, but I had already formulated a few plans of attack. There was a message waiting for me on my desk: call Tom Hobart.
Hobart was not only the cofounder of the NYSUT but also its president. He was the grandson of Garret Hobart, President William McKinley’s first vice president, who predeceased McKinley and was succeeded by Teddy Roosevelt, who in turn succeeded McKinley when the latter was gunned down in Buffalo. As a young man Tom Hobart, a political savant, arranged for the upstate teachers’ association—a “professional organization” rather than a “union,” largely because teachers at that time thought of themselves as “professionals” not in need of union protection—to merge with the NYC-based United Federation of Teachers, a union run by the brilliant labor organizer Albert Shanker.* With Hobart holding the political strings and Shanker organizing strikes, the newly created NYSUT won its first string of labor victories in the 1960s.
Then, a Republican state assemblyman from Long Island decided to test the teachers’ newly discovered clout. He cut a deal with Governor Rockefeller over the budget, including a provision extending the probationary period for teachers from three to five years (meaning teachers would have to work five years for tenure rather than three). Hobart raised $150,000 overnight, offered the Republicans in Suffolk County $25,000 to oppose the assemblyman in the next primary, and knocked the incumbent out of the legislature.† If Hobart had previously made NYSUT an organization that politicians respected and took seriously, from that point forward it was a group to be feared. Nothing gives lawmakers more angst than the thought of an incumbent losing. Hobart’s strategy was childishly simple: lavishly support every incumbent of both parties, but kill the career of anyone who gets out of line. I don’t mean to say that he got everything he wanted (though he came close). But he was almost always able to derail any legislation the union opposed.
So, assuming that Hobart would oppose the Pataki-Lentol bill, and knowing that if he did it was a dead duck, I was not concerned. I reached Hobart in his office on Wolf Road, a suburban “miracle mile” of offices, shops, car dealerships, a mall, and restaurants just outside of Albany. After we commiserated with each other about the bill and agreed that it was totally unacceptable, Tom made a confession: he was uncharacteristically hamstrung and had relied on the assumption that I would oppose the bill. Although Tom didn’t think much more of the bill than I did, his members in the Monroe-Woodbury area were passionately in favor. Ironically, since both of us assumed the other would oppose it, neither of us had done much of anything right away. But neither of us thought it was too late. Mario Cuomo was a friend, and his door was open to me. I was certain that the governor, as a committed constitutionalist, would see the glaring defects, and as a legal scholar, would realize what would obviously happen when it got to court. Just as important, Cuomo was a pragmatic politician.*
Back in 1974, when I was a fledgling public servant at the Office of Local Government (an agency created by Governor Rockefeller that was every bit as bureaucratic as it sounds), Hugh Carey, a Democrat, surprised everyone by winning the race for governor. The executive mansion had been dominated by the Republican Rockefeller from 1959 to 1973, but the labor-backed Carey (supported especially by the newly omnipotent NYSUT, without the help of which Carey could not have won) beat Rockefeller’s chosen successor, Malcolm Wilson. Wilson had been an assemblyman from Westchester, and was lieutenant governor when Rockefeller left. Because of the surprise victory, for a few days in Albany things were chaotic. The outgoing Republican governor had been so confident of victory that he had scheduled budget hearings for the next year to be held in the days following the election.
The governor’s office, scrambling and embarrassed, invited Carey to send a representative to assist in the transition, but Carey didn’t yet have any officially appointed representatives in Albany. At the suggestion of former New York City mayor Robert Wagner (whose son had become friendly with me while I was working on the mayor’s New York State Commission on the Powers of Local Government), I was asked to attend the budget hearing on behalf of the new governor.
When I arrived, dozens of reporters and several TV cameras were expecting this unknown, twenty-nine-year-old bureaucrat to speak on behalf of Carey, but I explained that I had never met the new governor, was connected to the election only through having voted, and was there only because an adviser thought I could “keep my mouth shut and take notes.” The next day the papers were abuzz with the story of “the first new Carey man to emerge.” That was news to me, but within a few weeks I was asked by the new administration what I wanted as a reward for having worked on the transition team. I was interested in the gobbledygook of policy and wonk-like concepts such as “inter-governmental policy projects” and “local governance initiatives,” and asked for such a position. The team looked at me with glazed eyes, suppressing yawns, and told me to report to my new boss, the freshly appointed secretary of state and the first real Carey man to emerge: Mario Matthew Cuomo. Cuomo had been the Democratic designee for lieutenant governor but was defeated by Mary Anne Krupsak. As something of a consolation prize, Carey, who was Cuomo’s close friend—both were alumni of St. John’s University School of Law—made him secretary of state shortly after taking office in January 1975.
Cuomo had made a name for himself in Queens as a young lawyer resolving housing disputes. In the late 1960s and early ’70s, New York was awakening to the harsh reality that segregation was not just a southern problem. When it came time to erect public housing in middle-class or upper-middle-class neighborhoods dominated by white professionals, egalitarian rhetoric flew out the window, and NIMBYY-ism (“not in my backyard”) became the universal response.* Having calmed a dispute in Corona, a strongly Italian neighborhood, Cuomo was asked to act as mediator for Mayor John Lindsay in his proposal to site public housing in the Jewish-dominated enclave of Forest Hills, Queens. Since Reform Jews were the backbone of the liberal wing of the Democratic Party in New York City, none of the people in the mayor’s office expected a struggle—especially because black and Jewish voters were seen as a single bloc, with no real policy disagreements. The firestorm that resulted from the Lindsay proposal destroyed that myth.
In any case, Mario Cuomo was energetic, restless, engaged, and ambitious and would never be content in a do-nothing or dead-end job. True, the secretary of state position had become pretty obscure since the halcyon days when Al Smith† appointed Robert Moses to the post. But Cuomo was intent on restoring prestige and power to the office, and Carey was willing to let him. So, with the transition team’s advice, Cuomo consolidated a variety of Rockefeller programs (including the Office of Local Government) into the secretary of state’s portfolio.
Over the next few years, I became Cuomo’s go-to “bleeding heart”—handling issues related to poverty, integration, Native Americans, people with disabilities, and similar matters. It was some of the most enjoyable work of my career, and I had a near worshipful relationship with Cuomo, whom I saw as a brilliant lawyer and committed progressive politician. Though I left in 1977 to become the state assistant commissioner of special education when Cuomo made an unsuccessful bid for mayor of New York, we stayed in contact over the years. I had worked again for Cuomo briefly during his first term as governor, leaving that post in 1984 to head the School Boards Association.
So, in view of my relationship with the governor, and given Hobart’s constraints, it was up to me to pay a visit to Cuomo.
I left my office and headed down Washington Avenue to the New York State Capitol to meet with the governor. From a distance, the state capitol, with its Romanesque/Renaissance/Victorian “style,” looks something like a grand French château. It is both elegant and monumental, but neither martial nor religious looking. It has a palatial quality that is lacking in the Greek- and Roman-inspired buildings in Washington.
At the time of its completion in 1899 (thirty-two years after the ground-breaking),* it was by far the most expensive public building in the Western Hemisphere, costing an astounding half billion dollars. In form and construction it was an architectural and institutional allusion, not to some classical cradle of democracy but to the ancien régime. It is oddly lacking a dome, but not by design: by the time they got to that point, the capitol was already grossly over budget and literally going downhill. It was beginning to slip down the incline of State Street, so they had to add a sixty-six-foot-long exterior staircase to support the facade. At the bottom of the grand exterior staircase is a statue of Civil War General Philip Sheridan, his mount facing away from the capitol with its derriere facing the statehouse.
In any case, while the capitol lacks a dome—one of only eleven statehouses nationwide without such an accoutrement—it is loaded with ghosts from the political graveyard. George Clinton (the fourth vice president); John Jay (the nation’s first chief justice); Chief Justice Charles Evan Hughes; Presidents Martin Van Buren, Grover Cleveland, and Theodore and Franklin Roosevelt; and almost-presidents William Henry Seward, Samuel Tilden, Al Smith, Tom Dewey, Averell Harriman, and Nelson Rockefeller had all been New York governors, and their aura haunts the capitol.
As I ascended the interior Great Western Staircase, also known as the Million Dollar Staircase (it took more than $1 million, and fourteen years, to construct the 444 stone steps), I glanced at some of the seventy-seven famous faces so beautifully carved into the sandstone, including Washington, Lincoln, Grant, and Susan B. Anthony. I considered Mario Cuomo their intellectual equal and felt confident that he would instantly see the constitutional infirmity in this bill about to reach his desk. I was right, sort of. He did see the problem; he just didn’t care.
“But, Luig,” Cuomo said, calling me by the nickname he had devised for me years earlier, “it’s just a school for thirteen poor, retarded immigrant children.”
Dumbstruck, I swiveled in my chair as a new set of angles arranged themselves in my mind. As I did so, I glanced, not without sentimentality, at the portrait of Saint Thomas More, patron of lawyers, which Cuomo had kept in his offices as long as I had known him. It’s a print of the one by Hans Holbein (the original can be seen at the Frick Collection in Manhattan). More is in three-quarter profile; he looks implacable and rich. Cuomo had identified with More and his speeches to revolutionary stepchildren about the “rule of law.”
Cuomo’s simple recitation of the facts revealed that he already knew all about the bill. That surprised me. If, I reasoned, Cuomo had already known even this much about the bill, could he have been involved in its passage all along? Finding that hard to believe, I handed the governor a copy of the bill to read, just to make sure we were on the same page.
The bill read as follows:
The territory of the Village of Kiryas Joel in the Town of Monroe, Orange County, on the date when this act shall take effect, shall be and hereby is constituted a separate school district, and shall be known as the Kiryas Joel Village School District and shall have and enjoy all of the powers and duties of a union free school district under the provisions of the Education Law. (L.1989, ch. 748, § 1.)
To me, this is what it meant:
The territory of the Village of Kiryas Joel (a theocracy inhabited only by members of the Satmar sect of Hasidic Judaism, a reclusive, exclusive group of religious fundamentalists whose dearest wish is to recreate an Eastern European ghetto in rural New York and to remain completely separate from all aspects of American culture except for receipt of an extraordinary amount of government funds) in the Town of Monroe (an old colonial town full of mainly non-Jewish people who are not comfortable with the Hasid and who are, collectively, willing to give the Satmar anything they want in hopes that they will go away), Orange County, on the date when this act shall take effect, shall be and hereby is constituted a separate school district (never mind that under the First Amendment, “Congress shall make no law respecting the establishment of religion”) and shall be known as the Kiryas Joel Village School District (even though New York is in the middle of a decades-old drive to cut the number of school districts by more than half, as we the legislature gladly set this precedent of giving school districts to religious fundamentalists because they vote unanimously and loudly) and shall have and enjoy all of the powers ($$$$) and duties ($$$$$$$$$) of a union free school district ($$$$$$$$$$$$$$$$) under the provisions of the Education Law (never mind that under New York’s Blaine Amendment, “Neither the state nor any subdivision thereof shall use its property or credit or any public money … directly or indirectly, in aid or maintenance … of any school or institution of learning wholly or in part under the control or direction of any religious denomination”).
I told Cuomo that the bill violated not only the federal Constitution but also the Blaine Amendment. He first took the high road, blaming the xenophobic, possibly anti-Semitic neighbors of the Satmar for the problem: “Do you know how insensitive the public schools have been to these people’s religion? How insulting?”
I did not need to be convinced on the merits. Having been the assistant commissioner of education for five and a half years, I knew not only the education laws but also the lay of the land better than Cuomo did. I wondered aloud whether it was a good idea to bypass the US Constitution because of a few insensitive teachers and school board members. I also promised that, if Cuomo would veto the bill, I would personally see that every Satmar kid in the district was placed in a suitable educational environment at public expense. I was well acquainted with service providers who could easily accommodate thirteen kids from Kiryas Joel, and I knew it would be no problem to find appropriate placements.
Cuomo’s temper flared: If I thought it was such a damn moral crusade, I should have said something about the bill before it passed both houses of the legislature. He accused me of sitting on my hands so I could grandstand before the press after the bill passed!
This was vintage Cuomo behavior. When seemingly cornered, he got defensive, and offensive. Still, to an extent he was right. I really hadn’t done anything to stop the bill’s passage through the legislature, nothing to prevent this hot potato from landing on his lap. (On the other hand, Pataki and Lentol had whipped the bill through at near record speed, and it is highly unlikely I could have done anything at the time to stop it.) Still, I couldn’t help but see the point that the governor was more than hinting at: if he vetoed the bill now, he would have to shoulder all of the political blame from a powerful voting bloc in New York City, the governor’s stronghold. It would have been easy for Cuomo to scuttle the bill before passage; now it would be a much bigger sacrifice.
Bearing this in mind, I asserted that if the governor signed it, the courts would knock it out. And, with a very obvious glance at the portrait of More, I noted that this would be a huge embarrassment to the great “constitutionalist” governor. Cuomo didn’t like that and proceeded to usher me out of his office, with the dismissive rhetorical question “Who’s going to sue?”
Ticked off, I said that I would, and then marched down the Million Dollar Staircase.
Although the brief debate had been carried on in the usual half-serious tones of combat that the governor and I had often engaged in, I felt that this one had been more serious. Also, I was sick at the thought of a man I admired as much as Mario Cuomo treating the Constitution as just another political chip as long as he thought no one would sue—which is to say as long as he thought no one would notice. The more I thought about it, the angrier I became, even though, having spent my life in public policy, I had certainly seen many worse examples of political disdain for constitutional principles. Now sadly certain that Cuomo would sign the bill, I was trying to decide if I could make good on my threat to sue. What might my board of directors think? It was their organization, not mine. Would they really let me take on the governor of the state of New York?
Ten days later, Cuomo indeed signed the bill. Every one of his highest advisers urged him in writing to veto it, and, in each case, the governor insisted on signing it, telling his counselors, “These people don’t ask for much.”
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* Albert Shanker (1928–1997), a junior high math teacher from Queens whose mother was a labor activist, became the president of the United Federation of Teachers from 1964 to 1985 and led the American Federation of Teachers from 1974 to 1997. He was a legendary labor leader and activist who was posthumously awarded the Presidential Medal of Freedom by President Bill Clinton.
† The leader of the GOP was so shocked at the proposed payoff that he accepted “only” $20,000. In Albany, that passes for principle.
* It was years before I learned that Cuomo was not only very familiar with the bill but that he had cut a deal with Hobart and the teachers’ union, getting them to agree not to stand in its way. Hobart being Hobart opted to view the deal literally—oh, yes, he agreed that NYSUT wouldn’t oppose it. But that didn’t mean he couldn’t encourage me to go to war against the governor, and he did just that.
* The situation reminded me of the words to a Phil Ochs song: “And I love Puerto Ricans and Negroes, as long as they don’t move next door. So, love me, love me, love me, I’m a liberal!”
† Al Smith was a legendary New York governor from the 1920s, a rip-roaring Democrat who appointed Robert Moses as his secretary of state. Moses became known as the “great builder” who remade New York and positioned it for further economic progress through the erection of bridges, roads, dams, highways, and byways—no matter what the cost or opposition.
* The New York State Capitol is a peculiar blend of three architectural styles reflecting the influence of three different teams of architects over the years of its construction. The first floor is Classical Romanesque, the next two floors are in the Renaissance Classical style, and the fourth floor is in a Victorian-Romanesque style. See Jack O’Donnell, Bitten by the Tiger (Chapel Hill, NC: Chapel Hill Press, 2014), 20.