738
Scalia, J., dissenting
tionality of a facially neutral law on the mere basis of its asserted religiously preferential (or discriminatory) effects— or at least to establish it in conformity with our precedents— Justice Souter "must be able to show the absence of a neutral, secular basis" for the law. Gillette v. United States, 401 U. S. 437, 452 (1971); see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977) (facially race-neutral laws can be invalidated on the basis of their effects only if "unexplainable on grounds other than race").
There is of course no possible doubt of a secular basis here. The New York Legislature faced a unique problem in Kiryas Joel: a community in which all the nonhandicapped children attend private schools, and the physically and mentally disabled children who attend public school suffer the additional handicap of cultural distinctiveness. It would be troublesome enough if these peculiarly dressed, handicapped students were sent to the next town, accompanied by their similarly clad but unimpaired classmates. But all the unim-paired children of Kiryas Joel attend private school. The handicapped children suffered sufficient emotional trauma from their predicament that their parents kept them home from school. Surely the legislature could target this problem, and provide a public education for these students, in the same way it addressed, by a similar law, the unique needs of children institutionalized in a hospital. See, e. g., 1970 N. Y. Laws, ch. 843 (authorizing a union free school district for the area owned by Blythedale Children's Hospital).
Since the obvious presence of a neutral, secular basis renders the asserted preferential effect of this law inadequate to invalidate it, Justice Souter is required to come forward with direct evidence that religious preference was the objective. His case could scarcely be weaker. It consists, briefly, of this: The People of New York created the Kiryas Joel Village School District in order to further the Satmar religion, rather than for any proper secular purpose, because
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