2nd Circuit Says School Closing Did Not Violate Establishment Clause

In Incantalupo v. Lawrence Union Free School District Number 15, (2d Cir., June 7, 2010), the 2nd Circuit rejected parents' Establishment Clause challenge to a consolidation plan adopted by the Lawrence Union Free School District. The plan resulted in the closure of one elementary school. Plaintiffs claimed the Board of Education, many of whose members are Orthodox Jews whose children attend private yeshivas, adopted the consolidation plan to reduce taxes and leave the public schools underfinanced. They argued that this promoted Orthodox Judaism by making more money available to Orthodox families for private school tuition. The court disagreed, finding that plaintiffs had not plausibly alleged that the plan violated the Lemon test:

As long as the plan affords any realized tax savings to taxpayers generally and without regard to religion, plaintiffs cannot plausibly allege that either the purpose or the primary effect of the plan is to establish religion. The fact that a large number of Orthodox Jewish taxpayers may freely choose to spend their tax savings from the plan on religious education for their children warrants no different conclusion because the plan itself does nothing to reward or even encourage such a consumption choice.

(See prior related posting.)