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Board of Education of the Kiryas Joel Village School District v. Grimet
New York Court of Appeals


"Certainly," this Court observed in Wolman v. Walter, 433 U.S. 233, 247 n.14 (1977), "the Establishment Clause should not be seen as foreclosing a practical response to the logistical difficulties of extending needed and desired aid to all the children of the community." The handicapped children of Kiryas Joel encountered precisely such logistical difficulties; and Chapter 748 represents precisely such a practical response. The courts below were wrong to conclude that the Establishment Clause forecloses the legislature's response.

Mindful of the admonition that "[a]n amicus brief which does not serve [the purpose of bringing relevant matter to the attention of the Court] simply burdens the staff and facilities of the Court and its filing is not favored," Rule 37.1, Rules of the Supreme Court of the United States (1990), we confine our argument to two short thematic points. Beyond those points, we note for the record our support for the views and analysis of the


dissenting judges in the courts below (Grumet v. Board of Education of the Kiryas Joel Village School District, 187 A.D. 2d 16, 25, 592 N.Y.S. 2d 123, 131 (3d Dept. 1992) (Levine, J., dissenting); Grumet v. Board of Education of the Kiryas Joel Village School District, 81 N.Y.2d 518, 545, 601 N.Y.S.2d 61,77 (1993) (Bellacosa, J., dissenting)); and our general concurrence with the many jurists and scholars who have called for a re-evaluation of "the aptly named Lemon test," Chopko, Religious Access to Public Programs and Governmental Funding, 60 Geo. Wash. L. Rev. 645, 654 (1992).

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