A Private Corporations Guilty of Governmental Establishment

The counties of Williamsburg and Borough Park in Brooklyn New York have an interesting situation with their public bus system.  Instead of using a government run public transportation system, a Private Transportation Corporation has purchased the rights from the city to act as a public bus system.  The buses look and function just like any public bus system.  Although these buses may seem like all public buses, there is one major difference.  On these buses female passengers must sit in the back while males must sit in the front.

             Though a person’s initial reaction would be to immediately declare this unconstitutional, it is more complicated than one would think.  The reason behind the separate seating on the bus is that this line mainly serves the Hasidic Jewish communities in the area.  The bus line has a board of rabbis consulting them on their operations, and they advised a decree stating to institute gender segregation on the bus.  The decree is based off of the deeply held religious beliefs of the Hasidic Jews that prohibits contact between sexes.  This decree was put into action and is a rule for all passengers.  This case becomes especially tricky to determine governmental establishment because it is a private company that has paid the city for the right to operate in this area.  Though it is a difficult situation, I believe that this rule does violate the Establishment Clause.

Before examining how the establishment clause applies to this situation I will note that I believe the government would not be breaking the free exercise clause by removing this rule from the buses.  Wisconsin v. Yoder places much importance on the validity of religious beliefs, and gender separation is a deeply held belief of Hasidic Jews through their interpretations of the Torah.  Despite the fact that this is a vital practice of Hasidic Jews, West Virginia Board of Education v. Barnette determines that the government can regulate actions that infringe on the “rights asserted by any other individual”.  I think it is clear that a gender segregation rule on a public bus infringes the rights of all those who wish to sit wherever they want.  Thus, limiting this rule would be constitutional and is within the government’s rights.

            To determine if this rule violates the establishment clause I will look to Lemon v. Kurtzman, and apply the Lemon test to this situation.  Before going through the test it is important to understand that although the private corporation is not directly controlled by the government and does not receive any government money, it has been given the responsibility to perform a public governmental public service.  This means that in the operation of the company’s duties it should follow the same laws that apply to the government. 

The first aspect to the test is to see whether this religious rule by a private corporation that has purchased public transportation rights from the city constitutes excessive governmental entanglement with religion.  In the Lemon ruling, aide programs were declared unconstitutional for breaking the excessive entanglement aspect of the Lemon test.  Since law required the government to examine school records it was determined to be excessive government entanglement. Though this organization must follow the same rules as the government in the execution of its responsibilities, since no government officials are directly involved in the company’s functions it does not constitute as excessive entanglement of the government  Another important aspect to this is that the company does not rely on taxes to perform its duties.  In Everson v. Board of Education, a New Jersey law was upheld that provided state funding for bus transportation to parochial schools. If this did not constitute as excessive entanglement, then this situation where tax dollars are not used cannot be considered excessive entanglement.

            Though this case does pass this first part of the Lemon Test, the second part of the test makes it clear that this is an example of violating the establishment clause.  The Lemon test requires the law in question to have ‘a secular legislative purpose’.  There is secular purpose for this.  The counsel of rabbis that advised this rule did so because gender interaction during transportation is “prohibited by Hasidic tradition”.  This rule clearly violates the secular purpose aspect of the Lemon Test, and this alone is enough evidence to declare it as violating the Establishment Clause.  In Wallace v. Jaffree, several bills were declared unconstitutional because the prime sponsor of the bills was quoted saying that primary purpose of the bill was to ‘return voluntary prayer to… public schools”.  This alone was enough evidence for the case to violate the purpose aspect of the Lemon test and the bills were declared unconstitutional.  In the same light, since the primary purpose of this law was to follow the teachings of the Hasidic tradition, it breaks the Lemon test, and should be considered a violation of the Establishment Clause.

            This case brings up many interesting questions, mainly those focusing on the responsibilities of private organizations performing governmental.  Since this organization is charged with performing a public service, I think it should definitely be responsible to follow the government’s obligations under the 1^st amendment and this decree should be ruled unconstitutional.