New York State School Boards Ass'n v. Sobol

• Decision Date: 06 June 1991
• Citation: 570 N.Y.S.2d 716,168 A.D.2d 188
• Court: New York Supreme Court — Appellate Division
• Parties: , 68 Ed. Law Rep. 132 NEW YORK STATE SCHOOL BOARDS ASSOCIATION, Appellant, v. Thomas SOBOL, as Commissioner of Education, et al., Respondents.

Page 716

570 N.Y.S.2d 716

168 A.D.2d 188, 68 Ed. Law Rep. 132

NEW YORK STATE SCHOOL BOARDS ASSOCIATION, Appellant, v. Thomas SOBOL, as Commissioner of Education, et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

June 6, 1991.

Jay Worona, Albany, for appellant.

Lizette A. Cantres (Elizabeth R. Koepcke, of counsel), Robert Abrams, Atty. Gen. (Daniel Smirlock, of counsel), Albany, for respondents.

Before MAHONEY, P.J., and CASEY, MIKOLL, YESAWICH and CREW, JJ.

CASEY, Justice.

Appeal from an order of the Supreme Court (Prior Jr., J.), entered June 27, 1990 in Albany County, which, inter alia, granted defendants' cross motion for summary judgment.

At issue on this appeal is whether 8 NYCRR 135.3 violates the Establishment Clause of the 1st Amendment by requiring that representatives from religious organizations be included on State-mandated AIDS advisory councils to be established by local boards of education for the purpose of making recommendations concerning the content, implementation and evaluation of AIDS instruction programs. We hold that the regulation does not violate the Establishment Clause.

In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745, the Supreme Court held that governmental action does not violate the Establishment Clause when the action (1) has a secular purpose, (2) has as its principal or primary effect one that neither advances nor inhibits religion, and (3) does not foster excessive entanglements with religion. Plaintiff contends that the regulation at issue fails to satisfy the second and third factors of the Lemon standard. According to plaintiff, the regulation has as a primary effect the advancement of religion because it communicates an endorsement of religion and creates a symbolic link between religion and the State. Plaintiff finds an excessive entanglement in that the regulation may require local school boards to choose which religion will be given a voice on the advisory counsel and may cause the involvement of faith or morals in a secular subject.

The regulatory scheme at issue requires local school boards to set up AIDS advisory councils made up of "parents, school board members, appropriate school personnel, and community representatives, including representatives from religious organizations" (8 NYCRR 135.3[b][2]; [c][2]. It is clearly the intent of the regulation that the advisory councils consist of a broad spectrum of community members, and the reference to religious organizations reflects at most defendants' considered judgment that religious organizations can help solve the problem to which the regulation is addressed. The Establishment Clause does not prevent defendants from making such a judgment or from recognizing that religion or religious organizations may have a role to play in resolving certain secular problems, and to the extent that this recognition advances religion, the effect is incidental and remote (see, Bowen v. Kendrick, 487 U.S. 589, 607, 108 S.Ct. 2562, 2573, 101 L.Ed.2d 520).

As to plaintiff's symbolic link argument, the Supreme Court has said that "the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred" (Larkin v. Grendel's Den, 459 U.S. 116, 125-126, 103 S.Ct. 505, 511, 74 L.Ed.2d 297). Here, however, there is no "appearance of a joint exercise of legislative authority by Church and State". Representatives from religious organizations are to serve as members of an advisory council consisting of a broad spectrum of community members. The council's function is advisory only, to make recommendations. The final decision-making authority as to the content, implementation and evaluation of...