The interest of the public lies not so much in the continuation of aid to non-public schools as it does in the continued vitality of the Establishment Clause.
WHEN I HEARD that Justice Kahn was assigned the case, I contacted a local legal reporter to get a sense of what kind of judge we were dealing with. I knew Kahn mainly by reputation, and his was solid. I’d heard he was smart, honest, and politically shrewd. And I’d marveled, somewhat curiously, at his ability to render decisions that garnered headlines and often praise in the local media. But I was looking for more behind-the-scenes insight into what we might expect. My media source advised me, “Larry Kahn’s got balls. He calls them as he sees them, does what he thinks is right, and doesn’t give a damn if he gets reversed. He’s not afraid of anybody.”
I smiled, because I knew that a judge, especially a Jewish judge, would come under close scrutiny in a case like this, where we were asking a “lowly” state trial judge to tell the governor of New York, a self-fashioned legal scholar, that he had trampled on the US Constitution, and to tell a significant and very powerful segment of the Jewish community that they couldn’t run a public school district. But Kahn, I learned, could not be intimidated or bought and had no trouble bucking the powers that be—the very politicians who could make or break his career. In fact, he made a habit of it.
With his Harvard Law and Oxford University credentials, roots in Albany, and powerful ambition, as a young attorney Lawrence Kahn had attempted to ingratiate himself with the local Democratic political machine. After he graduated with distinction from Harvard, Kahn came home to practice law with his older brother, Robert, and to get involved in government. He was quickly brought into the Albany Democratic fold as an adviser to Erastus Corning, a legendary figure who served as Albany mayor for more than four decades and ran the city like the old-fashioned boss he was. It was kind of an odd role for an upper-crust blue blood like Corning, who ran a very ethnic and working-class city.
The Albany machine was one of the most successful political juggernauts in the country and, along with Chicago’s Daly machine, one of the last. Republicans had generally dominated upstate politics since the Civil War, but in the 1920s a hardscrabble tavern keeper and cock-fighting promoter named Dan O’Connell decided to “throw the bums out.” O’Connell put together a political apparatus built of Irish workmen that would run Albany County for the next fifty years, and he installed Corning as mayor for life. O’Connell was gruff, rough around the edges, blunt, sarcastic, and fond of declaring that “all dogs are nicer than most people.”
If O’Connell was the gears and guts of the machine—and he was—Corning, the upstate aristocrat, with his elegance and grace and breeding, was the public face of the clockwork. Corning’s great-grandfather, also named Erastus, had founded the New York Central Railroad, which was for decades the largest, most profitable company in the United States. His father was the lieutenant governor during Al Smith’s last term as governor of New York.
With Corning and O’Connell at the top, the Albany machine soon became one of the most dominant in the country. Their aim was to control every elected or appointed position connected to the city and county of Albany, and they did it brilliantly, with old-fashioned ward-heeler tactics and by applying an adage that US Speaker of the House Tip O’Neill would coin decades later: “All politics is local.”
I remember when I first went to work for Mario Cuomo and bought a house in Albany. The moment I closed on the purchase, the property taxes went up. A lot. That wasn’t a big surprise, since the house had not changed hands for more than twenty years and I had paid far more than the previous purchaser had. Neither my wife nor I thought anything of it. Soon afterward, when my registration as a member of the Democratic Party reached the local political office, the neighborhood ward heeler knocked on my door.
“Mr. Grumet,” he said, “I just want to tell you that Mayor Corning is personally offended that your property taxes have been raised. If you would please sign this petition, I think we can start the process of having your reassessment overturned.”
Within a matter of weeks, the taxes indeed were reduced. In fact, I learned that the Albany machine made sure that property taxes of loyal Democrats were never reassessed.
One way that the machine was able to maintain such tight control was that Albany, though important because of its role as the capital of the wealthiest state in the union, was a relatively small city, with a population hovering around one hundred thousand people. This allowed the top brass in the machine to take a personal interest in almost every aspect of the city’s operations.
For example, when I was the assistant commissioner for special education, I learned that the Albany School District had yet to recognize the existence of even one learning disabled student. It was not uncommon for school districts to avoid evaluating and classifying special needs children; otherwise the district would be on the hook for the high cost of serving any special needs students it recognized. Even so, neither I nor anyone on my staff had ever seen avoidance of responsibility on such an obvious scale. After I wrote a report on this issue and sent it to the school board, I received a call from Mayor Corning’s office, inviting me to drinks at the Fort Orange Club, the premier private social club in town. Suspecting the mayor was far more interested in twisting my arm than toasting my astute observation, I instructed my secretary to decline the invitation. Then I sent the report to the press—along with the obvious implication that the machine was behind the failures. The day after the story broke, I returned home to find that the large, beautiful, and perfectly healthy maple trees in my front yard had been chopped down, chipped, and carted away by the city.
Another story has it that when Queen Juliana of the Netherlands visited Albany in 1959 (in honor of the anniversary of the Dutch founding of the city), Governor Nelson Rockefeller was so embarrassed by the sorry state of Albany, which at the time consisted of little more than sprawling neighborhoods of crumbling Victorian homes, that he resolved to sweep away some of the worst slums and replace them with a series of towers of the most up-to-date design—something to put Albany on the architectural map (it was eventually named the Nelson Rockefeller Empire State Plaza). A problem was that the State of New York cannot float bonds to finance projects without a citizen referendum—but it can authorize counties and municipalities to float bonds. In order to get around this problem, the governor wanted Albany County to finance his complex.* Mayor Corning agreed to the deal on the condition that instead of self-insuring the complex (as the state normally did with its buildings), the state would purchase insurance from Albany Associates, a small firm owned by Erastus Corning.*
Justice Lawrence Kahn, bright and connected but not beholden to anyone, grew up in the O’Connell-Corning political culture. He paid his dues, for a while, but quickly grew impatient when repeatedly told he would have to wait his turn for his professional and political aspiration: a judgeship. Kahn wasn’t owed anything—yet. And, crucially, he didn’t owe anything—yet. That gave him some freedom.
When a spot on the New York Supreme Court bench in Albany became available, Kahn was denied the party’s endorsement, which went to Thomas Whalen (who would later replace Corning as the mayor’s chosen successor). It was not unusual for the party to support a favorite son; rather, it was quite expected. What was unusual was for someone to challenge the party, and Kahn did just that, bucking the machine and running not only without its blessings but in opposition to O’Connell and Corning. Very few others had exhibited the same chutzpah, and their days in politics were over instantly and irrevocably. Kahn not only survived but thrived, for the same reason anyone prevails against a bully: he would not be intimidated. Even though Kahn lost the race against Whalen, he came alarmingly close. The machine knew he was potential trouble. The next time a supreme court seat opened, Kahn, by then a Republican, had the support of both major parties. And a supreme court judgeship in Albany is a plum.
The Albany supreme court bench has no more power than the supreme court in Buffalo or Brooklyn, but because Albany is the capital, the local judges routinely preside over suits against the state. State legislators in Albany and the machine bosses of the capital have always gone out of their way to nominate well-trained lawyers of distinction who could garner cross-endorsement. Politicians in New York have never been beneath treating judgeships as so many chips in a grand poker game. But when it comes to the Albany courts, a compromise in favor of quality seems to have been worked out in a fortuitous way: since neither party wanted to spend money on a judicial campaign (there’s little patronage; supreme court judges usually have only two staffers, a secretary and a law clerk), they tended to cross-endorse each other’s candidate. This resulted in a system of checks and balances; neither party would support the other party’s candidate if he (and in those days, it was he) was a rank political hack or incompetent.
So I was confident that we had a judge who had the brains and the courage to do the right thing. But I also knew that in a case like ours, doing what’s right is not as simple as it sounds. In our attack on the law itself, Kahn would be legally required to consider what is known as the equities of the issue. In the case of Kiryas Joel, the equities were particularly important, as the education of children with disabilities was at stake. I anticipated that if the judge believed that disabled children would otherwise be left without service, he could easily decide that fairness required a ruling in favor of KJ. As independent and honest as Kahn was, he didn’t want to pick up the paper some morning to read, JUSTICE KAHN TO DISABLED JEWISH KIDS: DROP DEAD!
Though I recognized that Kahn was under political pressure and, I suspected, subconscious personal pressure, I hoped that he would be able to separate himself from the implicit force of the governor as well as his own basic humanity and decide the case purely on the law. But I wasn’t going to take any chances.
I fully understood sound-bite politics, and I realized that I needed to appeal to the public’s ethos, pathos, and logos—as well as to an observant Jewish judge who would have to run for office sooner or later and didn’t need his own community rallying against him. As important as an entertaining quote or gossipy lead might be, I recognized the day-to-day need of government reporters: translation. The heavy reticulation of bureaucratese had become incomprehensible to the average specialist, let alone the average citizen.
As head of the New York State School Boards Association, I was in a position to translate education policy to outsiders, and reporters came to depend on me and my staff. Education is one of the few local issues that is always big news, as it’s controversial and interesting and it affects every community, every voter. At the same time that education is a vital topic of local news, it is also maddeningly complicated. The labor issues in education are byzantine and the funding issues so complex* that understanding them requires much specialized knowledge.
Communications director Bill Pape and I formed a translation tag team, a clearinghouse of news. I would turn education policy into sound bites that identified who was benefitting and who was being punished, then Pape would follow up and give reporters information that supported our conclusions. Very quickly, the media came to realize that we could be relied upon for the quick quote and in-depth analysis—and, crucially, that our information was accurate and credible. In a nutshell, we became the go-to sources on education policy, and not just in regard to Kiryas Joel. That status would yield important dividends as the KJ case made its way through the courts. With our credibility established on education policy, reporters were open to my other, more speculative comments about the whole range of public policy and political issues of the day. The relationships I had nurtured with the press would prove exceptionally valuable, enabling me to offer a credible viewpoint, which so heavily influenced the legislature.
The media was our best weapon in the legislature, because legislators are often afraid of the power of the press. Power is built on control of information. When the media presence is thin, as it is at most state capitols these days, the few reporters just take the press releases straight from the issuing agency. I was fortunate that during this period Albany still had reporters like John Caher of the Albany Times Union and Billy House of Gannett News Service who were willing to go behind the governor’s press releases and cultivate sources throughout and beyond the government—people who were willing to say something other than what the top brass wanted them to say. People like me.
Our public relations effort was focused on two key messages. One, we wanted to show that despite the claims of our opponents, there were perfectly legal and legitimate ways for the governor to ensure that the children of Kiryas Joel would receive all of the special education services they needed, deserved, and were entitled to. We publicized all of the many ways that the children of Kiryas Joel could be well served in the event that Justice Kahn ruled the school district unconstitutional, providing the justice with a way to clear his conscience. The kids could be placed in a community school run by Monroe-Woodbury but located in Kiryas Joel. They could be served in a local program operated by the Orange County Board of Cooperative Education Services. The parents could send their children to a private school for the disabled approved for public funding. Or the children’s needs could be addressed in a neighboring school district. Any of these options would lead to essentially the same outcome as the unconstitutional legislation: the Satmar kids with special needs would receive quality services without experiencing the kinds of painful culture clashes they had at the Monroe-Woodbury public school.
Two, we wanted to show that the Pataki-Lentol plan could lead to a host of sectarian school districts all over the state. We argued that the leaders of Kiryas Joel had rejected all alternative solutions because they wanted to totally control the placement of children and grasp the millions of dollars in public funds that would flow to their village educational programs, both public and private. We also pointed out that in a public school system, even private school students (such as those at the Kiryas Joel yeshivas) are eligible to receive state and federal funds for certain limited purposes, such as transportation and bilingual education, and that if the yeshivas remained under the Monroe-Woodbury umbrella, control over that funding would remain with Monroe-Woodbury, not Kiryas Joel. For those reasons, we argued, the village leaders were dead set against any checks and balances that threatened their power and control of public money. I suggested that the kids of Kiryas Joel were unwitting pawns and that this legislation had the potential to someday lead to educational ghettos.
Our strategy worked. Articles and editorials ran in the New York Times, Newsday, the Albany Times Union, the Middletown Times-Herald-Record, the twenty-two Gannett papers, and the Buffalo News—all supportive of our position. We had given Kahn political cover through the media. Now we needed to win the legal battle.
The morning of the oral arguments, Jay Worona left the School Boards Association’s office, walking downhill toward the courts. The route took him between Mario Cuomo’s office on the second floor of the state capitol building on one side of Washington Avenue and the classically colonnaded New York State Education Department on the other. Jay said he had the strangest sense that those two enormous buildings were closing in to pulverize him, but at the last minute spit him down the hill another block to the Albany County Court House and the chambers of the Honorable Lawrence E. Kahn. Opposing counsel Nat Lewin was already in the courtroom, his persona and legend creating an intimidating aura for us, but not for the judge. Justice Kahn immediately started firing a barrage of questions: What would happen if he ruled in favor of our side? How would the children be served? Does the court really have the authority to strike down a law that hasn’t even been tested? How do we know the district can’t operate in a constitutional manner? Shouldn’t the court defer to the lawmaking authority of the legislature until and unless its work is proven to violate the Constitution? When will the bickering between Kiryas Joel and Monroe cease to plague the courts?
Worona and Pilar Sokol did their best to field Kahn’s pressing questions while Lewin urged the judge to defer to the legislature and give the law a chance to prove its vitality and constitutional validity. All the attorneys were outstanding, and I was immensely proud of my two young lawyers and the way they stood up to a legend like Lewin. Whatever happened, I was confident that our arguments were presented loudly and clearly, and that we were leaving Kahn with the legal tools he needed to rule our way.
But Kahn had a decision to make. He instructed his law clerk, Michael Stafford, to begin preparing a decision based on the arguments. That is typical. Judges routinely use their clerks as sounding boards and often give them first crack at a decision, even without debating the case. Sometimes, the clerk and the judge share an opinion, sometimes they are at odds, sometimes the clerk prevails on the judge to view the case differently, and sometimes the judge’s initial reaction wins the day. At times the judge and clerk discuss the case before the clerk takes a crack at a decision; at other times they don’t, because the judge wants a fresh view and doesn’t want to influence his or her underling. But while it is a collaborative process, at the end of the day the decision is the judge’s and it’s his or her name that goes on it. The only instruction Kahn gave Stafford before sending him off to draft an opinion was this: ignore, for the time being, the state constitutional argument and, for the moment, stick with the US Constitution.
I can only speculate as to why Kahn wanted to rule on the federal Constitution, where our claim was not nearly as strong, and ignore the state constitution, where I had thought we couldn’t possibly lose. My guess is that a number of factors, legal and political, played into Kahn’s decision. I suspect he knew the case had the potential to go to the US Supreme Court if he decided on federal constitutional grounds and he wanted to give the justices an opportunity to reconsider or refine the Lemon test if they were so inclined.
At around the same time, the New York State Court of Appeals—the state’s highest court—was itself debating whether, when it had the option, it should rule only on the state constitution or only on the federal Constitution, or both. A state-only ruling would preclude federal review, leaving the court’s work beyond the scope of the Supreme Court and denying the Supreme Court an opportunity to make an important pronouncement on constitutional law. Ruling only on the US Constitution meant foregoing an opportunity to stake independent state constitutional grounds.
To no one’s surprise, Stafford’s first draft would have denied both sides’ motions for summary judgment, or an immediate decision that essentially adopts all of the arguments of one side of the dispute. But Stafford’s draft went further: it would have ordered a trial to determine if the school district was being run properly. This decision, in effect, would be a denial of our facial challenge, which argued that the law was improper regardless of how it was implemented.
Kahn didn’t agree with his clerk’s take, but it helped gel the issues for him and helped him decide the course he would take, if only because he thought Stafford got it wrong. The Constitution is not a wait-andsee document. The point of the Lemon test, which Kahn was bound to follow as long as he was committed to ignoring the state constitution to get to the federal Constitution, was to evaluate the conduct of the government when it made the law—not the application of the law. Kahn decided to draft the opinion himself.
The relationship between the judicial and the political branches bears mention here. It is a delicate balance. While the third branch of the government has the judicial power to decide disputes, it also has the political power to void the acts of other branches of government. But judges are usually careful, when potentially intruding in political matters, to act only against the means by which the legislative or executive branch executed the policy, rather than the policy itself (since setting policy is a prerogative of the political branches). When a judge renders a law void, he or she will usually try to do it in a manner that makes it possible to achieve whatever legislative goal is at hand. In other words, when courts find they have to strike down a law, they usually try to do so in a way to salvage the goal of the law if not the method. Most judges would rather say, “You can’t do what you’re trying to do this way,” rather than, “You can’t do it at all.”
In Kiryas Joel, Kahn wanted to send a message that it was constitutionally unacceptable to serve Satmar children with special needs by giving a school district to a religious community. But he may also have wanted to leave room for the legislature to serve those kids in some other way, and ensure that he didn’t paint lawmakers into a corner.
Meanwhile, Kahn was starting to get pressure from his own community—some in favor of the legislation, some opposed. He put enormous effort into crafting a legally sound, balanced decision and, on January 22, 1992, issued a succinctly articulate opinion finding that the establishment of the Kiryas Joel Village School District violated all three prongs of the Lemon test.
First, it has a sectarian rather than a secular purpose. There is no doubt that the legislation was an attempt by the executive and Legislature to accommodate the sectarian wishes of the citizens of Kiryas Joel by taking the extraordinary measures of creating a governmental unit to meet their parochial needs.
The statute rather than serving a legitimate governmental end, was enacted to meet exclusive religious needs and has the effect of advancing, protecting and fostering the religious beliefs of the inhabitants of the school district.
Kahn went on to state that the “residents of the Village of Kiryas Joel have unequivocably refused and rejected any attempts to provide for the education of handicapped pupils from the village at a neutral site previously offered by the Monroe-Woodbury School District” and described the village and its coterminous school district as “an enclave of segregated individuals who share common religious beliefs which shape the social, political and familial mores of their lives from cradle to grave…. The legislation is an attempt to camouflage, with secular garments, a religious community as a public school district.”
The justice continued:
The intent of the Legislature and executive to be responsive to the citizens of Kiryas Joel is laudatory and reflects the political process straining to meet the parochial needs of a religious group. However, their action violates the First Amendment which prohibits legislation which promotes the establishment of religion. The Satmar Hasidic sect enjoys religious freedom as guaranteed by the very First Amendment that they are now seeking to circumvent. This short range accomplishment could in the long run, jeopardize the very religious freedom that they now enjoy.
The strength of our democracy is that a multitude of religious, ethnic and racial groups can live side by side with respect for each other. The uniqueness of religious values as observed by the Satmar sect is especially to be admired as nonconformity becomes increasingly more difficult to sustain, however, laws cannot be enacted to advance and endorse such parochial needs in violation of our deep-rooted principle of separation of Church and State.
Wow! I viewed the decision as a stunning victory and lauded Kahn’s ruling as legally and politically astute. Kahn had adroitly spelled out all the issues, making a wonderful record for appeal—which we all knew was inevitable. The Albany reporter I had asked about Kahn months before was right: Kahn had balls, and he wasn’t afraid of anyone—not even his own community.
Predictably, the judge’s decision was not well received in the village of Kiryas Joel. Abe Wieder was livid. The Satmar had prevailed on their political “friends” to establish the district because they didn’t want to rely on the courts, and now they were stuck in a legal battle. They had brought in the best lawyer money could buy. They had spent vast sums setting up the one and only public school in the Kiryas Joel Village School District for a handful of special needs pupils. They had gone to court and by luck of the draw got a Jewish judge. Wieder’s reputation in the village (and more important, with the grand rebbe himself) was now at stake as he discussed appealing the decision with attorney Nat Lewin.
Meanwhile, he had to break the bad news to Steve Benardo, the expert in special education and school administration whom the village had recruited to run the school.
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* Mayor Corning and Governor Rockefeller were such larger-than-life figures, simultaneously in public office in Albany, that a perpetual clash of egos was inevitable. Local lore holds that the titans battled over everything, including their respective legacies, as evidenced by their construction projects. Rockefeller built the Empire State Plaza, a huge, modern state office and cultural complex in the center of downtown Albany. However, while no one refers to the Nelson A. Rockefeller Empire State Plaza by his name—it is simply the Empire State Plaza or South Mall to locals—the largest building on the campus (and the tallest skyscraper in the state outside of Manhattan) is universally known as the Corning Tower.
* Corning was a fascinating and historic figure, and I barely touch on his incredible political career and life. Anyone intrigued by this man and interested in learning more would do well to check out a wonderful biography of the mayor by Paul Grondahl, an outstanding Albany Times Union journalist: Mayor Corning: Albany Icon, Albany Enigma (Albany: Washington Park Press, 1997).
* In New York most public school funding, as previously noted, is raised locally through property taxes, but those funds are almost doubled by money from the state and federal governments. Federal money is disbursed through the states, not directly to school districts. Although this is a convenient system for the federal government, since it can distribute money to the fifty states rather than the thousands of school districts, it interposes political maneuvering at the state level. In addition to the complicating factor of multiple funding sources, there are multiple funding targets, because much of the state and federal money is earmarked for specific programs. The complexity of the process means that legislators can make inscrutable changes with drastic effects without the public understanding how or why the change was made.