April 8, 2003

BY OVERNIGHT MAIL AND FAX: 609-588-6536
The Honorable Steven C. Reback, A.L.J.
Office of Administrative Law
Quakerbridge Plaza, Building 9
P. O. Box 049
Mercerville, NJ 08625-0049

Your Honor:

Agudath Israel of America, founded in 1922, is a national Orthodox Jewish organization, with constituents and affiliated chapters all across the United States, including Lakewood and other parts of New Jersey. As detailed in our December 4, 2002 letter requesting permission to make an amicus curiae presentation, the decision of the Administrative Law Judge in this case could have a direct and substantial impact on our constituents in Lakewood, and could establish a precedent that would affect Orthodox Jewish communities throughout the country. We therefore respectfully offer our perspective as a deeply concerned ‘friend of the court’, as approved by order of the Court dated December 19, 2002.¹

What seems to trouble the Petitioner most is the extent to which the growing community of Orthodox Jews in Lakewood is gaining political influence and strength.²

To the extent his 87-paragraph complaint is able to translate this general frustration into specific discernible legal claims, the principal ones appear to be that (1) the Lakewood School Board has authorized busing for Orthodox Jewish students in a manner that disparately benefits Orthodox Jews at the expense of public school students, and that (2) the policy of providing separate buses for different schools results in discriminatory, unconstitutional segregation. The Board in its Answer has answered the complaint on a paragraph-by-paragraph basis, and we do not wish to burden the Court with a similar rebuttal. Rather, we wish to address these two principal claims, which, if upheld, could have negative ramifications for religious school students throughout the country. As we will show, both of these claims are totally without legal merit.

I. THE SCHOOL DISTRICT'S PROVISION OF BUSING FOR
RELIGIOUS SCHOOL STUDENTS IS PERMISSIBLE

Petitioner concedes that, under Everson v. Bd. of Ewing Twp., 330 U.S. 1 (1947), the state may transport students to and from religious schools without violating the Establishment Clause. However, he attempts to somehow craft an Establishment Clause violation out of the fact that a substantial percentage of the Lakewood School District's transportation expenses are directed toward the transportation of parochial school students. Yet the Supreme Court has explicitly stated that, as long as there is no Establishment Clause violation in the provision of a particular benefit to religious school students, the fact that the majority of recipients of that benefit attend religious schools is not relevant.

In Mueller v. Allen, 463 U.S. 388 (1983), the Supreme Court rejected an Establishment Clause challenge to a Minnesota program authorizing tax deductions for various educational expenses, including private school tuition costs, even though the great majority of the program's beneficiaries (96%) were parents of children in religious schools. As the Court stated, "[w]e would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law." Id. at 401. Similarly, in Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002), the Court upheld Cleveland's school voucher program, stating that the fact "[t]hat 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause." Id. at 2469.

The New Jersey Superior Court, in upholding a statute authorizing busing for private school students, similarly concluded that "the mere fact that more than 91% of the private school students in New Jersey attend church-run schools does not establish a prohibited purpose. The statute is not couched in terms which could be read as providing for a religious test in determining which students are entitled to bussing aid." McCanna v. Sills, 247 A.2d 691, 694 (N.J. Super. Ch., 1968). See also Cromwell Property Owners Ass'n v. Toffolon, 495 F.Supp. 915, 920 (D.Conn. 1979) ("Clearly, a demonstration that most of the beneficiaries of Connecticut's inter-district transportation program will be members of one religious sect is not constitutionally significant… [P]ertinent case law has not incorporated into the principle of religious neutrality any standard approaching equal dollar allotments for each group of religious adherents").

To the extent that a significant percentage of the students receiving non-mandated transportation from the Lakewood School Board are Orthodox Jewish students, this is merely a reflection of the demographic realities of the community. Using Petitioner's own statistics for the purpose of this argument (although most of these statistics are disputed by Respondent), "Orthodox Jews represent more than 50% of Lakewood's total population." Petition, paragraph 13. Is it thus any wonder that of the district's 357 school transportation routes, at least 138 transport Orthodox Jewish students to their religious schools (id., paragraph 14), or that "nonpublic school students represent 61 percent of the total number of students that are transported" (id., paragraph 15), or that "Orthodox Jewish parochial school students represent 38.5 percent of the total number of students that are transported daily via the district's courtesy busing program" (id., paragraph 18)? These are hardly "shocking discrepancies" as Petitioner claims; to the contrary, these very statistics show that Orthodox Jewish students, who comprise the majority of the total number of students in Lakewood, receive a share of school transportation services that is at most proportionate to their numbers.

Petitioner seems to acknowledge that, under settled state and local law, private school students in the Lakewood district are entitled to state-funded school transportation. Yet he argues that the School Board's method of applying this policy is unlawful, in that separate buses are provided for different schools. The Petitioner claims that the resulting separation on the school buses of Lakewood--between public and private school students, non-Jewish and Jewish students, and boys and girls--constitutes unlawful discriminatory segregation. We would argue that the School Board policy and its application is fully lawful under both New Jersey and federal law.

1. Under New Jersey Law

Petitioner makes much of the fact that the School Board has established bus routes for nonpublic school students that are separate and apart from those established for public school students. Yet this practice is explicitly sanctioned by New Jersey legislation and settled case law. In Fox v. Board of Education of West Milford Township, 93 N.J.Super 544 (Law Div. 1967), the court held that the New Jersey transportation statute, as then formulated, authorized transportation for nonpublic school students only along established public school routes. In direct response to this ruling, the New Jersey legislature adopted L.1967, c. 74, which eliminated the ‘established school route' provision. This revision subsequently withstood a claim that the designation of separate routes for nonpublic school students violated the Establishment Clause. See McCanna v. Sills, 103 N.J. Super. 480 (Ch.Div. 1968). See also West Morris Regional Board of Education v. Sills, 58 N.J. 464 (1971) (upholding the New Jersey transportation statute against further claims that it violated the Establishment Clause); Board of Education of Borough of Woodbury Heights v. Gateway Regional High School, 104 N.J.Super. 76 (Law.Div. 1968) (detailed historical overview of the New Jersey transportation statute).

2. Under the United States Constitution
1. The Equal Protection Clause

Petitioner apparently claims that the School Board policy of separate buses for different schools violates the Equal Protection Clause. Yet since the School Board policy is uniformly applicable to all students in the district, it does not create any classifications or distinctions that would easily lend themselves to an Equal Protection challenge.

The School Board has made clear that its policy of separate buses for different schools is for administrative convenience only. Given the different locations and different arrival and dismissal times of the many schools in Lakewood, the fact that Jewish schools observe various Jewish holidays when no bus service is required, and concerns regarding student discipline, the least costly, most efficient, and safest system for transporting students would appear to be the organization of school routes by individual school. The fact that most, if not all, of the public school and non-sectarian private school students in the district are transported in this manner--each school in its own bus or buses--is indicative of the entirely innocuous rationale underlying the School Board's busing policies. See Respondent's Brief in Support of Motion for Summary Judgment, Exhibit F.

In analyzing Petitioner's Equal Protection claim, this court need only establish a legitimate state purpose underlying the School Board's action. In a case directly on point, the District Court in Helms v. Cody, 856 F.Supp 1102 (E.D.La. 1994) found that separate bus routes for public and nonpublic schools did not constitute an Equal Protection Clause violation. "The Court does not find that assigning unique bus routes for each school, whether public or nonpublic, infringes upon fundamental rights and demands strict scrutiny. The Court will apply the rational basis test because student transportation falls within ‘the area of economics and social welfare.'" 856 F.Supp at 1154.

Absent compelling evidence as to improper motive or action (which Petitioner has not provided), great deference should be afforded to the decisions and policies of the local School Board. See e.g., Helms v. Cody, 856 F.Supp at 1155 ("The [school board] has a rational basis for concluding that [assigning a separate bus route for each school] is the safest type of transportation for all of its students. It is obvious to the Court that it is usually safer for students to remain on one bus and not have to transfer to another bus for additional transportation. In addition, it is obvious that for elementary school students especially, it is safer for all of the students to exit at one school rather than risk a child exiting at the wrong school."); Members of Jamestown School Committee v. Schmidt, 699 F.2d 1, 6 (1st Cir. 1983) (discussing "the Supreme Court's evident willingness to accept a stated secular purpose in school cases at essentially face value"); West Morris Regional Board of Education v. Sills, 58 N.J. at 480 ("[T]he Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients." (quoting Dandridge v. Williams, 397 U.S. 471 (1970)). It is further notable that Petitioner himself cites case law to support the proposition that "[s]chool districts are granted wide latitude to fashion transportation policies, chart bus routes and designate bus stops." Petition at paragraph 25.

With respect to the Petitioner's charge that the School Board's policy results in racial segregation (Petition at paragraph 19), the Supreme Court ruled in Brown v. Board of Education, 347 U.S. 483 (1954) that racially segregated schools are a violation of the Equal Protection clause because separate facilities are inherently unequal. The Court found significant harm to minority students who were required to attend segregated schools; "[t]o separate [students] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." Id. at 494. However, unlike the circumstances in Brown, in the case before the Court there has been no showing that public school students are suffering any harm by not riding on the same school buses as private school students, or vice versa. Therefore, while a number of courts have ordered the busing of students in order to promote more integrated public schools (See e.g., Swann v. Charlotte-Mecklenburg Board of Education, 402 US 1 (1971); Davis v. Board of School Comrs., 402 US 33 (1971); North Carolina State Board of Education v. Swann, 402 US 43 (1971)), no court has ever ruled that affirmative efforts must be made to racially integrate students on school buses with those from other schools. There is simply no constitutional mandate to do so.

With respect to Petitioner's objection to the School Board's policy on the grounds that it results in separate buses for boys and girls, just as there is nothing illegal or unconstitutional in providing separate secondary schools for each gender, Vorchheimer v. School District of Philadelphia, 532 F.2d 880 (3d Cir. 1976), aff'd, 430 U.S. 703 (1977), providing separate buses to travel to and from those schools is surely permissible.

2. The Establishment Clause

Providing separate bus routes for religious school students does not convey government sponsorship of religious schools any more than ‘integrated' routes would, and thus the mere fact that Lakewood has separate routes does not violate the Establishment Clause. Helms v. Cody is again directly on point. In addressing an attack on separate bus routes, the court ruled that "[c]onsidering all of the evidence and the law, the Court does not find that the Establishment Clause mandates the creation of combination routes to transport public and nonpublic school students in [the school district]." 856 F.Supp at 1153.

Petitioner also appears to argue that the provision of separate bus routes for boys and girls is in and of itself also a violation of the Establishment Clause in that it advances the religious belief of Orthodox Jews that the sexes should be kept separate. As stated above, where there is a valid secular purpose for a particular policy (in this case, the provision of separate buses for each school), the fact that such a policy also accommodates religious beliefs does not create an Establishment Clause violation.

Furthermore, we would suggest that Lakewood's provision of gender-separate busing, even if Petitioner could show that it was done to accommodate the religious beliefs of Orthodox Jews, is a permissible accommodation to the religious sensitivities of the students and their families. See e.g., Lynch v. Donnelly, 465 U.S. 668 (1983) ("Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any... Anything less would require the ‘callous indifference' we have said was never intended by the Establishment Clause"); Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136 (1987) ("This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause."); Wisconsin v. Yoder, 406 U.S. 205 (1972) (judicial exemption of Amish children from compulsory attendance at high school).

Such religious accommodation is particularly appropriate in cases as the present one, where the accommodating action (separate bus routes for each school) is commonly performed even in the absence of religious considerations. By simply providing separate routes for each school, religious preferences for gender-separate buses are accommodated without offending the Establishment Clause.

As articulated in the Respondent's briefs and this amicus curiae presentation, the Petitioner's complaint has failed to state any valid legal claims. Lakewood's student busing policies conform fully to state and federal law and pass constitutional muster. Respondent's request for summary judgment should be granted.

cc: Michael I. Inzelbuch, Esq.
George S. Osborne

²  We note that the Petition thus contains a fair number of unnecessary and incendiary remarks that seem to belie a personal animus on the part of the Petitioner and serve only to create needless division within the Lakewood community (e.g., paragraph 45 wherein the Petitioner states that "The ultra Orthodox Jewish community's bloc voting controls the election processes in Lakewood. Every elected official in Lakewood serves at the pleasure of the ultra Orthodox Jewish community. Lakewood's township committee, and the Lakewood Board of Education are controlled by the ultra Orthodox Jewish community. If, the ultra Orthodox Jewish community where [sic] to sneeze, the township committee, and the board of education would catch a cold. The board is more than 'excessively' entangled with religion. It is joined at the hip with it."). It is telling that Rev. Jimmy Wilcox, who together with George Osborne chairs the Lakewood Coalition of Advocates for Public Schools, has withdrawn support for Mr. Osborne's action in this case and urged the other members of the Coalition to do the same precisely because of the very divisive nature of the complaint. "Wilcox said . . . he had changed his mind about supporting the lawsuit because he believed a favorable ruling would disrupt the education of thousands of Orthodox Jewish students without helping Lakewood's public school students achieve better test scores. Osborne, he said, is 'a good man,' but his suit is 'divisive,' adding that he felt it was aimed at one group. He said unity and harmony within the township are more important than the issues raised by the suit." Lois Kaplan, "Key Player Pulls Support of Busing Lawsuit," Ocean County Observer, February 17, 2003.

Posted to Jlaw.com 10/4/03

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