HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/WARE-VAL.ASC

Text File | 1993-01-14 | 67KB | 1,234 lines

/* This case is reported as 550 N.E. 2d 240. Each time
comprehensive AIDS education is proposed, objections are made to
the curriculum due to some parents religious disagreement with
the sexual content of the plans. In this case, a group of parents
made a constitutional challenge to mandatory AIDS education. A
highly divided court finds some circumstances in which such
objections might be lawful-- despite the emergency nature of the
need for such education. */

John WARE et al., Appellants,

v.

VALLEY STREAM HIGH SCHOOL

DISTRICT et al., Respondents.

Court of Appeals of New York.

/* The Court of Appeals is the highest state court in New York.
The Supreme Court of New York is a trial court. */



Dec. 19, 1989.



OPINION OF THE COURT

KAYE,  Judge.

In response to the alarming spread of AIDS, the Commissioner of
Education has promulgated regulations requiring all primary and
secondary school students in the State to receive extensive
instruction about the disease. Plaintiffs, by this action,
challenge the regulations as violative of their First Amendment
right to freely exercise their religious beliefs. The Appellate
Division affirmed Supreme Court's summary dismissal of the
complaint.  While plaintiffs ultimately must meet a high
threshold of proof to sustain their contentions, on this factual
record we conclude that summary rejection of their assertion of
fundamental constitutional values was inappropriate, and we
therefore modify the Appellate Division order and reinstate  the
amended complaint challenging defendants' AIDS curriculum.

The individual plaintiffs are members of the Plymouth Brethren, a
religious organization of approximately 35,000 adherents
worldwide, 2,000 of whom live in the United States. Plaintiff
Foster Church, Inc., a New York religious corporation, owns the
group's real property and other tangible assets. In this State
there are two Brethren communities-known as "local gatherings"
or  "fellowships"-one  in  Valley Stream (with 140 members,
including the named plaintiffs) and one in Rochester (with 120
members).

As the Appellate Division noted, the Brethren are a devoutly
religious group established in the 1820's by Irish Christians who
had become disenchanted with the established churches of the
period  (150 A.D.2d 14, 16, 545 N.Y.S.2d 316).  Their faith has
consistently been dedicated to strict adherence to Biblical
teachings. Fundamental to the Brethren creed is a precept of
spiritual separatism by which members seek to distance themselves
from all things they consider evil. Accordingly, the Brethren
spend much of their time in group prayer and they shun many
modern technological innovations they consider evil.

Plaintiffs complain that they are now faced with evil in the form
of the mandate that each school district promulgate an AIDS
curriculum for its elementary and secondary school students.
Specifically, the regulations require that elementary schools
provide such instruction as part of the health education program
for all pupils beginning in kindergarten (8 NYCRR 135.-3[b][2]);
secondary schools similarly must incorporate AIDS instruction
into the required health instruction courses (8 NYCRR
135.3[c][2]).

/* This highlights the comprehensive nature of the education. */



Each curriculum must include instruction concerning the nature of
the disease, methods of transmission and methods of prevention (8
NYCRR 135.3[b][2]).  Recognizing the delicacy of some of the
subject matter, the regulations further provide that: "No pupil
shall be required to receive instruction concerning the methods
of prevention of AIDS if the parent or legal guardian of such
pupil has filed with the principal of the school which the pupil
attends a written request that the pupil not participate in such
instruction, with an assurance that the pupil will receive such
instruction at home."  (8 NYCRR 135[b][2]; [c][2].)

/* This provision is unusual in sex education statutes. Normally
parents may prevent their children from receiving any such
education. The New York law truly mandates comprehensive
education. */

Plaintiffs are directly affected by the regulations requiring
AIDS instruction in that approximately 35 Brethren children
attend public schools in the Valley Stream High School District,
where-beginning with the second semester of the 1988-1989
school year-the secondary school curriculum includes 22 lessons
concerning AIDS.

In November 1988, plaintiffs asked the school district to exempt
their children from the entire AIDS curriculum.  That request was
denied on the ground that the regulations do not authorize a
local board to grant a complete exemption. The board did.
however, exempt Brethren children from the segment of the
curriculum labeled "Prevention," consisting of five lessons in
how abstinence from illegal intravenous drug use and sexual
activity can prevent the transmission of AIDS.  Lessons the
children must attend include "Practice skills in saying no,"
"Know ways the AIDS virus can and cannot be transmitted," and
"Recognize and evaluate media messages regarding sexuality." As
the school superintendent wrote plaintiffs, "We are still
prepared to assist you in reasonable ways to develop your appeal
[to the Commissioner of Education] for exemption from this
instruction as we are not in disagreement with your position, but
rather are bound by State Education Department directives."

In February 1989, plaintiffs simultaneously filed this lawsuit
and a petition to the Commissioner on behalf of all children
living in the Valley Stream and Rochester fellowships.  The
lawsuit was instituted against the Valley Stream High School
District, the Commissioner and the State for a declaration that
the regulations compelling AIDS-related health instruction
violated both plaintiffs' constitutional rights to freely
exercise their religion and their privacy right to rear their
children.  Plaintiffs' administrative application to the
Commissioner-made pursuant to section 16.2 of the Rules of the
Board of Regents (8 NYCRR 16.2) [footnote 1] and Education Law
3204(5)  [footnote 2] sought a religious exemption from all
aspects of the AIDS curriculum.

Brethren children have already been exempted by the school
district from the portion of the health and hygiene curriculum
relating to human sexuality.

In both their complaint and their administrative petition,
plaintiffs asserted that the AIDS curriculum conflicts with their
strictly held religious belief that followers not engage in
sexual relations outside of marriage and not be exposed to
instruction concerning sexuality or morality other than that
which is imparted by the community. Plaintiffs further urged that
an order exempting their children from AIDS instruction would not
present a danger to the public, in light of the improbability of
their children's participation in activities that transmit AIDS.

/* It appears that the attorneys for the plaintiffs are conceding
that if there was a risk of transmission that the public health
aspects of the case would over-ride their objections. */

On March 3, 1989. Supreme Court granted the Commissioner's

/* The Supreme Court of New York is the TRIAL court, not the
appeals court of last resort. */

request for a stay pending the determination of the
administrative petition.  Shortly thereafter the Commissioner
denied plaintiffs' application without passing on their
constitutional claim, observing that his office was "not the
appropriate forum for litigating novel questions of
constitutional law."

While not questioning the sincerity of plaintiffs' religious
convictions, the Commissioner denied the request on the ground
that their claims were outweighed by the State's interest in
educating all students about AIDS.  "At this point in the history
of the disease." the Commissioner wrote, "it is well recognized
that education is the most  powerful  and  important  weapon
against the spread of AIDS. Clearly, immediate and universal
public education must play a primary role in curbing a disease
which already has had such catastrophic effects."  The
Commissioner further noted that some members of the Brethren may
fall short of community expectations, and children may leave in
pursuit of alternative life-styles -- concluding that plaintiffs'
argument was "not compelling."  Finally, the Commissioner
admonished the local board for its failure to implement the
exemption it had allowed the Brethren from instruction in AIDS
prevention.  Brethren children, like all other students in the
physical education classes had been given pamphlets entitled "The
Wellness Way: Understanding and Preventing AIDS," which contained
advice to "use latex condoms plus spermicide" "if you can't be
sure your partner is not infected with the virus," and to "limit
the number of sexual partners to reduce your chance of exposure
to the virus."

Following the Commissioner's decision plaintiffs moved in Supreme
Court for summary judgment, In support of this motion plaintiffs
relied upon their verified amended complaint, a recent study of
the Brethren by an English academic, and two joint affirmations
of plaintiffs, one of which contained an essay- "We Have a Life
of our Own" -- outlining the religious and ethical principles the
Brethren follow, and the manner in which members guide the lives
of their children in accordance with the tenets of their faith,
Based on these submissions, plaintiffs' relevant factual
allegations may be summarized as follows,

First, the Plymouth Brethren are an identifiable religious group
with a long history of maintaining a cohesive community separated
and insulated from society. Members-who have been accorded
"conscientious objector" status by the Selective Service System-
are strongly moral and principled individuals practicing and rein
forcing personal purity and other exemplary moral behavior,
Apart from the practical necessity for this very small group to
attend public school and earn a livelihood in the community,
members' associations are limited to other Brethren.

Second, plaintiffs' children are not permitted to socialize with
nonmember children after school, or even to eat with them at
school, The Brethren do not allow television or radio, and they
do not see movies or read magazines. Their lives are spent in
worship, or in social activities limited to association with
other members under the constant moral guidance and supervision
of parents and other community adults in an "extended family."

Third, insistence upon rigorous morality is interwoven with the
movement's strong sense of separateness. The central principle of
the Brethren's religion is the obligation to "separate from
evil."  Even to know the details of evil is regarded as
subversive.  This injunction forms the basis of their teaching
and practice.

Fourth, in that the Brethren condemn all sexual relations outside
of marriage as evil and the details of that evil as subversive,

"[t]he religious tenets of its members flatly * * * forbid
exposure to instruction concerning sexual relations and moral
teachings other than those imparted by members of the community
to members of the community."  Consequently, plaintiffs believe
that their children's exposure to the contents of the AIDS
curriculum is inimical to their religious, moral, ethical and
personal well-being.  In plaintiffs' own words: "to expose our
children to the detail of evil amplified in the entire sex, drug
and AIDS curriculum would undermine the foundations of our faith
and scar the moral values which have been instilled into our
children from their very earliest days and could even jeopardize
their place in the holy fellowship of God's Son, our Lord Jesus
Christ, if they were diverted from a path of righteousness."

Fifth, exposure to the AIDS curriculum would undermine the
Brethren's ability to guide their children's moral lives in
accordance with their faith.  In short, as plaintiffs affirmed,
such exposure "carries with it the very real threat of
undermining [plaintiff's] religious community and religious
practice."

Sixth, by reason of the extent to which the Brethren involve
themselves in instilling exemplary behavior in their children
including the teaching of the moral and health dangers of AIDS,
the abstinence from all sexual relations outside of marriage, and
the avoidance of illegal drugs in order to remain physically and
spiritually "pure "-no public health risk will result from the
exemption. Whatever the failings of society at large in educating
children to avoid the dangerous and unhealthy practices by which
AIDS is transmitted, in Brethren society such instruction is
successful.

/* A second time in which the Brethren appear to concede that if
there is even a risk of lack of education resulting in
transmission that a mandatory curriculum would be appropriate. */

Finally, Brethren "children have been exposed to school
disciplinary sanction by reason of their justified refusal to
participate in mandatory AIDS-related instruction."

Defendants separately cross-moved for summary, judgment, arguing
that plaintiffs' free exercise rights would not be violated by
merely exposing their children to the information contained in
the AIDS curriculum; they urged, moreover, that the State has a
compelling interest in educating its citizens to protect them
from the dangers of AIDS. Defendants particularly disputed
plaintiffs' allegation that they are part of an isolated
community, pointing to the degree to which they are "mixed-in"
and "integrated" with the general community.  Defendants alleged
that the need to educate plaintiffs' children about AIDS is
further underscored by the possibility however remote- that
disaffected members may leave or be expelled from the confines of
the faith.

Supreme Court granted defendants' motions for summary judgment.
The court found that plaintiffs were integrated into the local
community and not outside the zone of persons in need of
protection from a known hazard, that the mandated instruction was
not contrary to plaintiffs' religious beliefs or destructive of
the community as a whole, and that in any event compelling State
interests justify the requirement. The court further upheld the
Commissioner's determination on the ground that it had a rational
basis.  The Appellate Division affirmed, but on a somewhat
different rationale.  While acknowledging that the compulsory
exposure of plaintiffs' children to the details of evil which
their religion instructs them to avoid may burden plaintiffs'
religious rights, the court nevertheless concluded that the
State's compelling interest in AIDS education justified that
burden.

On plaintiffs' appeal, we now modify the Appellate Division order
by reversing the award of summary judgment against them.

I.

[1]  As both this court and the United States Supreme Court have
long recognized, public education is committed to the control of
State and local school authorities.  The Commissioner of
Education and local officials are vested with wide discretion in
the management of school affairs (see, Matter of Board of Educ.
v. Ambach, 70 N.Y.2d 501, 510-511, 522 N.Y.S.2d 831, 517 N.E.2d
509; Bullock v. Cooley, 225 N.Y. 566, 576-577, 122 N.E. 630;
Board of Educ. v. Pica, 457 U.S. 853, 863-864, 102 S.Ct. 2799,
2806-2807, 73 L.Ed.2d 435). Time and again the courts have made
clear that the judiciary should not lightly intrude in the
resolution of school conflicts, which usually are best left to
the education authorities (see, Board of Educ. v. Nyquist, 57
N.Y.2d 27, 38-39, 453 N.Y.S.2d 643, 439 N.E.2d 359, appeal
dismissed 459 U.S. 1138, 103 S.Ct. 775, 74 L.Ed.2d 986; Epperson
v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d
228).  Deference to the education decisions of State and local
officials-particularly in matters of curriculum-embodies  several
important concerns, including preservation of local democratic
control over educational policy; protection  of teachers'
academic  freedom; maintenance of policies that comport with the
views of educational experts; and formulation of curriculum so as
to transmit community values and foster the free exchange of
ideas (see, Keyishian v. Board of Regents, 385 U.S. 589, 603, 87
S.Ct. 675, 683, 17 L.Ed.2d 629; Strossen, "Secular Humanism" and
"Scientific Creationism": Proposed Standards for Reviewing
Curricular Decisions Affecting Students' Religious Freedom, 47
Ohio St.L.J. 333, 354-355 [1986]).

[2]  Ordinarily, judicial intervention is appropriate only when
school conflicts "directly and sharply implicate basic
constitutional values."  (Epperson v. Arkansas, supra, 393 U.S.
at 104, 89 S.Ct. at 270.) The discretion of the school
authorities, however broad, plainly must be "exercised in a
manner that comports with the transcendent imperatives  of  the
First Amendment."(Board of Educ. v. Pico, supra, 457 U.S. at 864,
102 S.Ct. at 2806.)

Precisely that distinction was recognized in the decision and
order by which the Commissioner rejected plaintiffs' application
for a total exemption from the AIDS curriculum.  Were the test
merely one of rational basis, unquestionably the Commissioner's
determination, evidencing care and sensitivity to plaintiffs'
predicament, would be sustained. Indeed, there would be much to
be said for upholding the determination on the Commissioner's
stated ground that a total exemption from a portion of the school
curriculum "sends the message that a pupil's participation in
AIDS education is negotiable."

But as the Commissioner himself noted, plaintiffs' contention was
that denial of a total exemption burdens their constitutional
right of free exercise and an administrative appeal is not the
appropriate forum for resolving "novel questions of
constitutional law." The cases make clear that a detailed factual
showing is necessary in order to sustain a contention that
challenged instruction burdens sincerely held religious beliefs;
such issues are plainly inappropriate for administrative
resolution.  Moreover, given the findings of fact and conclusions
of law necessary for any such plaintiff to prevail-these
plaintiffs may well be among the few that could even survive
summary judgment-there need be no fear that the AIDS curriculum,
or any other part of defendants' curriculum, would be widely
regarded as "negotiable."

The novel question of constitutional law reserved by the
Commissioner now becomes the focus of this appeal.

II.

[a]  Reflecting the rich religious pluralism that characterizes
and distinguishes this Nation, the First Amendment to the Federal
Constitution enjoins the State from enacting any laws
"prohibiting the free exercise" of religion. [footnote 3]  Under
this clause a claimant may seek a religious exemption from a
government requirement linked to a benefit program such as public
education (Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32
L.Ed.2d 15; see generally, Dent, Religious Children, Secular
Schools. 61 S.Cal.L.Rev. 863 [1988]; Note, Religious Exemptions
Under the Free Exercise Clause:  A Model of Competing
Authorities, 90 Yale L.J. 350 [1980]).

[4]  In deciding whether a claimant is entitled to such an
exemption, the Supreme Court has formulated a two-step analysis.
both steps obviously fact-sensitive (see generally, Mozert v.
Hawkins County Pub. Schools, 765 F.2d 75 [6th Cir.] [remanding
colorable free exercise claim for further factual  development],
on  remand  647 F.Supp. 1194 [E.D.Tenn.], revd. 827 F.2d 1058,
cert. denied 484 U.S. 1066, 108 S.Ct. 1029, 98 L.Ed.2d 993;
Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 509
P.2d 1250 [remanding colorable free exercise claim], appeal after
remand sub nom. Denver Urban Renewal Auth. v. Pillar of Fire, 191
Colo. 238, 552 P.2d 23). First, a claimant must show a sincerely
held religious belief that is burdened by a State requirement
(see, Hernandez v. Commissioner of Internal Revenue, 490 U.S. ---
-, ----, 109 S.Ct.  2136, 2148,  104 L.Ed.2d 766; Lyng v.
Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 108
S.Ct. 1319, 99 L.Ed.2d 534; see generally,  Lupu, Where Rights
Begin:  The Problem of Burdens on the Free Exercise of Religion,
102 Harv.L.Rev. 933 [1989]). Second, the State must demonstrate
that the requirement nonetheless serves a compelling governmental
purpose, and that an exemption would substantially impede
fulfillment of that goal (Hobbie v. Unemployment Appeals Commn.
of Fla., 480 U.S. 136, 141, 107 S.Ct. 1046, 1049, 94 L.Ed.2d
190).

With respect to both prongs of the test, this case presents
material issues of fact that preclude summary judgment.

Burden on Free Exercise

[5]  While the Supreme Court has been less than clear in defining
just how much a State requirement need burden religion in order
to violate the Free Exercise Clause plainly governmental action
that merely offends religious beliefs does not implicate First
Amendment values (see. Joseph Burstyn, Inc. v. Wilson, 343 U.S.
495, 505, 72 S.Ct. 777, 96 L.Ed. 1098).  This is particularly so
in the context of school curriculum decisions, where important
policy concerns dictate deference to education authorities.

(N.Y; Const., art. I,  3).

[6, 7]  It is generally acknowledged that mere exposure to ideas
that contradict religious beliefs does not impermissibly burden
the free exercise of religion. [footnote 4]  The First Amendment
does not stand as a guarantee that a school curriculum will
offend no religious group. [footnote 5]  Moreover, parents have
no constitutional right to tailor public school programs to
individual preferences, including religious preferences (see,
Epperson v. Arkansas, 393 U.S. 97,106, 89 S.Ct. 266, 271, supra).

Plaintiffs accept that the Constitution offers no protection
against exposure to ideas that offend their religion.  They
maintain, however, that the Supreme Court recognized an exception
to the "mere exposure" rule in Wisconsin v. Yoder, 406 U.S. 205,
92 S.Ct. 1526, supra, and that they fall squarely within that
exception.

Yoder involved members of two Amish groups who refused, on the
basis of religious belief, to send their children to school
beyond the eighth grade.  The parents were convicted of violating
Wisconsin's compulsory school-attendance law, which required
parents to send their children until age 16.  At trial the Amish
asserted that the law required what their religion forbade and
thus violated the Free Exercise Clause.  In addition, the Amish
adduced testimony from expert witnesses, scholars on religion and
education, who explained the relationship between the Amish
belief concerning school attendance and the more general tenets
of their religion, and described the devastating impact that
compulsory high school attendance could have on the continued
survival of the religious community.

The Supreme Court in Yoder held Wisconsin could not require the
Amish to send their children to public school after the eighth
grade.  In finding an impermissible burden on free exercise, the
Supreme Court examined Amish life and culture in some detail,
ultimately concluding that what was in issue were long-standing
beliefs shared by an organized group that the beliefs related to
religious principles and pervaded and regulated Amish daily life,
and that the State law threatened the continuing existence of the
Old Order Amish church community.

The reach of Yoder is plainly limited. The Supreme Court itself
made that clear in cautioning that its holding would apply to
"probably few other religious groups or sects" and that "courts
must move with great circumspection in performing the sensitive
and delicate task of weighing a State's  legitimate social
concern when faced with religious claims for exemption from
generally applicable educational requirements."  (406 U.S. at 235-
236, 92 S.Ct. at 1543-1544.)  Commentators have speculated that
"[f]ew future free exercise claimants are likely to match the
testimony of extreme injury relied upon by the Supreme Court in
Yoder."  (Pepper, Reynolds, Yoder, and Beyond Alternatives for
the Free Exercise Clause, 1981 Utah L.Rev. 309, 338 [1981];
Smith, Constitutional Rights of Students, Their Families, and
Teachers in the Public Schools, 10 Campbell  L.Rev.  353,  376-
379  [1988]; Strossen, op. cit., at 387-389, 390, n. 288.)

Nevertheless, the present case bears some striking similarities
to Yoder.  As in Yoder, plaintiffs seek a religious exemption
from exposure to ideas that are not merely offensive but
allegedly abhorrent to their central religious beliefs.  And like
Yoder, governmental action purportedly compels them to
participate in instruction that is at odds with a fundamental
tenet of their religious belief-remaining simple from evil (406
U.S. at 218, 92 S.Ct. at 1534). The Brethren assert, like the
Amish in Yoder, that these are entrenched religious beliefs, not
the product of "a way of life and mode of education by a group
claiming to have recently discovered some 'progressive' or more
enlightened process for rearing children for modern life." (Id.,
at 235, 92 S.Ct. at 1543.) Their adherence to "the Principle of
Separation," they say, also stems from "a sustained faith
pervading and regulating [their] entire mode of life."  (Id., at
219, 92 S.Ct. at 1535.)

[8]  Thus, on this record we cannot agree  with  the  sweeping
conclusions reached by the Trial Judge in granting summary
judgment that the  mandated AIDS curriculum is neither contrary
to the Brethren's religious beliefs nor destructive of the
community as a whole.  Rather, the record  better  supports  the
conclusion reached by the Appellate Division that "compulsory
education which exposes [plaintiffs'] children to the 'details of
evil' which their religion instructs them to avoid may place a
limited burden upon the free exercise of their religion." (150
A.D.2d, at 19, 545 N.Y.S.2d 316.)

But it is as much plaintiffs' alleged differences from the Amish
in Yoder as their similarities that give pause and persuade us
that further factual development is required before a  conclusion
can  be reached -- either  way- on the question whether the free
exercise of sincerely held  religious beliefs is burdened by
compulsory AIDS education, how great such a burden might be, and
what if any further accommodation should be made.  With such
significant public and private interests in the balance, on this
record it is at the least prudent to withhold judgment until
there is a firmer basis for the necessary findings of fact than
the brief, contentious, often conclusory affidavits both sides
have submitted. The trial record in Yoder is replete with fact,
scholarly and expert testimony that has no parallel in the
present record.

Our decision to deny summary relief in this case, however, is not
based simply on prudence.  Our decision rests on the traditional
ground that summary judgment should be denied where there are
disputed issues of material fact, as there are in this record.
Two examples of such issues are pertinent to the question of
burden.

/* Another way of saying that appeals courts dislike summary
judgments, which is well known by all attorney's learned in
appellate practice. */

Defendants acknowledge the sincerity of plaintiffs' religious
beliefs.  There is no dispute as to the tenets of their faith,
and no need for the court to go behind the declared content of
their religious beliefs. But defendants do very much question the
extent to which plaintiffs have become part of mainstream
society.  They point to the not insubstantial facts that
plaintiffs live and work in the Valley Stream community, their
children attend public schools, and they take in new followers
from the public-urging that plaintiffs are therefore not at all
the isolated religious community that was the subject of Yoder.
Plaintiffs, by contrast, insist that they are exactly like the
Amish in Yoder, except for what they characterize as the "minimal
requirements" that they attend public school and work in the
community, because it is not feasible for them to do otherwise.
This factual dispute goes to the heart of plaintiffs' assertions
that their religious exercise would be burdened by exposure to
the AIDS curriculum,.  If plaintiffs in their daily lives are so
thoroughly integrated into the larger society  and its evils-the
State requirement may in fact impose no burden  , or only the
"limited burden" the Appellate Division found.  This clash of
contentions-which  divided  the  two  lower courts-cannot be
properly determined on the present record.

Somewhat relatedly, a central disputed issue exists as to whether
the AIDS curriculum poses any threat to the continued existence
of the Brethren as a church community. That conclusion was
factually established by trial testimony and findings in Yoder
(see, 406 U.S. at 209-212, 218-219, 235-236, 92 S.Ct. at 1530-
1532, 1534-1535, 1543-1544); and whether or not the law actually
requires such extreme injury, plaintiffs themselves by their
affirmed statements have represented that they are so threatened.
But defendants have steadfastly maintained that no irreversible
prejudice would befall plaintiffs and that, to the contrary, the
proposed instruction would only benefit their children.  Again,
as this case has been posited by plaintiffs themselves, the
record is inadequate to choose as a matter of law between the
parties' disputed assertions.

Compelling State interest

[9]  Even religious rights must bow to the compelling interests
of the State, pursued by the least restrictive means (Thomas v.
Review Bd., 450 U.S. 707, 718, 101 S.Ct. 1425,1432, 67 L.Ed.2d
624; Sherbert v. Verner, 374 U.S. 398, 406-409, 83 S.Ct. 1790,
1795-1797, 10 L.Ed.2d 965; Wisconsin v. Yoder, 406 U.S. at 215,
221, 224, 236, 92 S.Ct. at 1533,1536,1537,1543).

If plaintiffs succeed in establishing that exposure to the AIDS
curriculum substantially burdens their religious practice,
defendants' refusal to grant the exemption will be then subject
to "strict scrutiny." (Hobbie vs. Unemployment  Appeals Commn. of
Fla., 480 U.S. 136, 141, 107 S.Ct. 1046, 1049, supra.)  Both the
trial court and the Appellate Division were satisfied that the
State's interests in AIDS education on its face was so compelling
that it necessarily would override plaintiffs' free exercise
rights. While that conclusion may ultimately prove correct, it
was error to reach it on the present record.

As a blanket proposition, the State has a compelling interest in
controlling AIDS, which presents a public health concern of the
highest order.  Nor can there be any doubt as to the blanket
proposition that the State has a compelling interest in educating
its youth about AIDS.  Education regarding the means by which
AIDS is communicated is a powerful weapon against the spread of
the disease and clearly an essential component of our nationwide
struggle to combat it.

But the Education Law and regulations themselves provide for
exemptions from the prescribed curriculum.

/* Suggesting that perhaps if there were no exceptions the rule
would be upheld? */

Moreover, history teaches that constitutional protections do not
readily yield to blanket assertions of exigency. As with other
grave risks we have faced during the past two centuries, the
threat of AIDS cannot summarily obliterate this Nation's
fundamental values (see, Orland and Wise, The AIDS Epidemic:  A
Constitutional  Conundrum, 14 Hofstra L.Rev. 137,150 [discussing
Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed.
194]).  That compelling public interests underlie the mandate for
AIDS education thus does not, in and of itself, end all inquiry
as to whether 35 Brethren children must be denied an exemption.

Where burden is established, the State must show with
"particularity how its admittedly strong interest in compulsory
education would be adversely affected by granting an exemption to
[these children]." (Wisconsin v. Yoder, 406 U.S. at 236, 92 S.Ct.
at 1543; see also, Sherbert v Verner, 374 U.S. at 408-409, 83
S.Ct. at 1796-1797; Quaring v. Peterson, 728 F.2d 1121 [8th
Cir.], affd. sub nom. Jensen v. Quaring, 472 U.S. 478, 105 S.Ct.
3492, 86 L.Ed.2d 383; Larson v. Valente, 456 U.S. 228, 248, 102
S.Ct. 1673,1685, 72 L.Ed.2d 33.)  On the present record, the
State has not made the showing required to support summary
judgment in its favor.

As is evident from the submissions, the compelling health
interest in educating school children about AIDS is controlling
the spread of the disease. Defendants advance several arguments
to the effect that this interest would be substantially impeded
by granting plaintiffs a total exemption from the AIDS
curriculum.  That conclusion is not, however, self-evident, as
indicated by the following two disputed fact issues.

In supporting the compelling need to educate Brethren children
about AIDS, defendants point both to plaintiffs' extensive life
within the community and to the possibility that some of them may
go astray, or leave the fellowship, or be cast out, thus
consigned to living among the general population ignorant of
AIDS.  Plaintiffs rejoin that their lives are indeed separate,
and that the State's allegations regarding defections are pure
speculation; there is no evidence either way as to defections
among the New York State Brethren.  Even assuming that a
defection could be said to pose a public health threat,
plaintiffs strenuously dispute that the education they provide
their children leaves them ill equipped to cope with the dangers
of AIDS.  These contentions cannot be determined by the existing
record.

Again somewhat relatedly, given the particular means by which
AIDS is transmitted a real question is raised about the education
Brethren children do receive, and whether the State can achieve
its goal of AIDS control by means that would not unduly burden
plaintiffs' religious practice. If plaintiffs showed that the
education they offered their children was the functional
equivalent of the AIDS curriculum -- giving due regard to the
physical as well as moral concerns -- the State might well be
required to accommodate their beliefs (see, Callahan v. Woods,
736 F.2d 1269, 1274-1275 [9th Cir.] [remanding for further
factual development on whether grant of constitutionally based
exemption would impede the objective sought to be advanced by the
State];  Wisconsin v. Yoder, supra; Buchanan, Accommodation of
Religion in the Public Schools: A Plea for Careful Balancing of
Competing Constitutional Values, 28 UCLA L.Rev. 1000 [1981]).

On this point the parties are at loggerheads.  Defendants allege
that Brethren parents do not offer a suitable alternative form of
education, in that they provide their children only with moral
instruction which is not an adequate substitute for clinical
information.  The Appellate Division characterized Brethren
teaching as "uncontradicted religious  indoctrination which
denies the existence of undeniable health crises".  (150 A.D.2d,
at 21, 545 N.Y.S.2d 316.)  But plaintiffs strenuously contest
those assertions. Although Brethren children are provided with
moral instruction regarding sex and drug use, plaintiffs have
never stated that this is all they teach their children and they
represent that, if granted an exemption, they would "instruct
[their] children at home or in their assembly concerning the AIDS
virus and epidemic."  They further submit that, as a practical
matter, by teaching their children to avoid all sexual activity
outside of marriage and to avoid all illegal drugs in order to
remain physically and spiritually "pure," they have developed "a
strong AIDS-prevention program" that has been singularly
successful in preventing its members from either contracting the
disease themselves or transmitting it to others.  This factual
dispute also requires a fuller record.

In short, while the spread of AIDS heightens and intensifies the
public interest in education, it does not overrun other cherished
values that may not require sacrifice. [footnote 6]  To be sure,
plaintiffs must meet a high threshold of proof,  but at  this
juncture we cannot summarily brush aside the passionate
assertions of a longstanding, highly individual -- if not unique
-- religious group in this State that exposure to defendants'
AIDS  curriculum  could alone destroy the foundations of their
faith and "jeopardize their place in the holy fellowship of God's
Son."

Accordingly, the order of the Appellate Division should be
modified by denying defendants' motions for summary judgment,
with costs, and otherwise affirmed.

TITONE, Judge (dissenting).

I agree with many of the sentiments set forth in the majority
opinion, including the majority's expressed solicitude for
plaintiffs' right to the free exercise of their religious
convictions. Further, like the majority, I believe that the
unquestionably urgent contemporary goal of preventing the spread
of AIDS should not obscure the importance of the more enduring
values represented in the Free Exercise Clause of the First
Amendment.  However, unlike the majority, I have grave doubts
about the need for a hearing on plaintiffs' claims. That
disposition is troublesome to me, both because defendants'
conclusory  submissions seem insufficient to raise a legally
significant question of fact and because, as a practical matter,
it is difficult to discern what additional facts a hearing would
reveal.  Moreover, unlike the majority, I do not believe that
this case fits neatly within the "mere exposure" rule, which
affords public school authorities wide latitude in requiring
attendance at classroom lessons that contain material offensive
to some religious sects. Accordingly, I write separately to
express my own dissenting views on the issues this case presents.

Initially, it bears emphasis that while questions involving
claims for religious exemption are unquestionably fact-sensitive
(majority opn., at 124, at 173 of 551 N.Y. S.2d, at 426 of 550
N.E.2d), they are nonetheless governed by the conventional rules
for granting or denying summary relief (see, Mozert v. Hawkins
County Pub. Schools, 765 F.2d 75, 78 (6th Cir.), on remand 647
F.Supp. 1194 (E.D.Tenn.), revd. 827 F.2d 1058 (6th Cir.), cert
denied 484 U.S. 1066,108 S.Ct. 1029, 98 L.Ed.2d 993). Under these
rules, a party opposing summary judgment "must produce
evidentiary proof in admissible form sufficient to require a
trial of material questions of fact * * *  mere conclusions,
expressions of hope or unsubstantiated allegations or assertions
are insufficient" (Zuckerman v. City of New York, 49 N.Y.2d 557,
562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  accord, Friends of
Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068, 416
N.Y. S.2d 790, 390 N.E.2d 298; Alvord & Swift v. Muller Constr.
Co., 46 N.Y.2d 276, 281-282, 413 N.Y.S.2d 309, 385 N.E.2d 1238).
In this case, the majority has identified several questions of
fact that, in its view, require a trial.  However, as I read the
record, defendants' conclusory submissions do not rise to the
level of proof that is required successfully to oppose summary
relief.

First, the majority identifies as a triable question of fact
whether plaintiffs have truly remained spiritually segregated
from the larger community, and therefore insulated from exposure
to its evil, as their religion assertedly demands.  As the
majority observes, plaintiffs have submitted substantial
documentation of the manner in which their insularity is
preserved  i.e., rules that forbid their children from
socializing with others during or after school, interdictions
against exposure to television, radio, magazines and the like and
rules limiting social intercourse to members of the group.  This
documentation is sufficient to establish, at least prima facie,
the genuineness of plaintiffs' claim that separation from society
and avoidance of exposure to the "details of evil" are essential
features of their religious practice.

In opposition to plaintiffs' claims on this point, defendants
have come forward with no specific contradictory facts or proof,
in affidavit form, that plaintiffs' separatist practices are not
what they have represented.  Instead, defendants merely make note
of the fact that plaintiffs are not totally isolated and do have
some contact with the larger community through their attendance
at school and work.  Based upon these "facts," defendants then
ask the court to infer that plaintiffs' religious exercise would
not necessarily be compromised by exposure to the AIDS
curriculum.

These submissions leave me to wonder what more would be elicited
in an evidentiary hearing. Plaintiffs have not disputed the
allegation that they rely on the larger community to supply
gainful employment and education for their children.  To the
contrary, they candidly acknowledge this reliance, explaining it
as a practical necessity, which they keep to a minimum because of
their religious commitment to separatism.  Presumably, defendants
have a]ready "laid bare" their proof, as they are required to do
when a motion for summary judgment has been made.  We may
therefore assume that they have no additional proof to offer on
this question.  We thus have before us all of the facts that are
likely to emerge. The conclusion that further proceedings may
produce something additional rests on nothing more than mere
"expressions of hope" or speculative theorizing of the sort that
the case law forbids (e.g., Zuckerman v. City of New York, supra,
49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Moreover, the majority's insistence upon further factual
development raises troubling questions about the proper fact-
finding role of the courts in this dispute. The suggestion that a
factual dispute exists concerning the extent of plaintiffs'
actual isolation from the mainstream of society implies questions
about either the sincerity with which plaintiffs hold and
practice their separatist beliefs or the extent to which their
beliefs actually do require the near-complete isolation that
their papers allege. Since, as the majority notes (majority opn.,
at 127, at 175 of 551 N.Y.S.2d, at 428 of 550 N.E.2d), defendants
have not questioned the sincerity of plaintiffs' beliefs and
practices, the inquiry will presumably focus on the latter
question.

It is difficult to imagine, however, how a court could ever
engage in such an inquiry without running directly afoul of the
well-established rule that the judiciary may not become the
arbiter of what a particular religious group truly believes.  As
this court stated in Matter of Holy Spirit Asso. v. Tax Commn.,
55 N.Y .2d 512, 522, 450 N.Y.S.2d 292, 435 N.E.2d 662), "[t]he
articulation of the Supreme Court in foreclosing judicial inquiry
into the truth or falsity of religious beliefs is equally
applicable to judicial inquiry as to the content of religious
beliefs."  Thus, "[n]either the courts nor the administrative
agencies of the State * * * may go behind the declared content of
religious beliefs" (id., at 521, 450 N.Y S.2d 292, 435 N.E.2d
662).  Yet, that is precisely what the majority declares should
be done here.

The same infirmity exists in the majority's statements that there
must be an inquiry into whether "the AIDS curriculum poses any
threat to the continued existence of the Brethren as a church
community." (Majority opn., at 128, at 175 of 551 N.Y. S.2d, at
428 of 550 N.E.2d.) Plaintiffs have squarely alleged that their
religion forbids instruction on matters of morality and physical
intimacy other than that given by members of their own community.
According to plaintiffs' submissions, exposure to the matters
addressed in the disputed AIDS curriculum "would undermine the
foundations of [their] faith * * * and could even jeopardize [the
children's] place in the holy fellowship of God's Son".
Furthermore, both common sense and an overview of plaintiffs'
submissions suggest that the success of the separatism that is so
central to their creed depends upon their ability to shield their
children from the larger community's more permissive values and
ideas on matters of sexuality (cf, Wisconsin v. Yoder, 406 U.S.
205, 92 S.Ct. 1526, 32 L.Ed.2d 15 [separatist Amish sect sought
to avoid exposing its children to the competitive values
inculcated in public schools] ).

Once again, there is nothing concrete in defendants' submissions
that calls these assertions into question, apart, that is, from
some conclusory assertions that plaintiffs' children would suffer
no irreversible harm' from exposure to the special AIDS
curriculum. [dissent footnote 1] Further, even if defendants'
submissions on the issue were not so sparse, a serious question
would exist as to what kind of further proof defendants could
conceivably muster.  Will the trial court be called upon to
consider expert testimony concerning the relative importance of
various aspects of the Brethren's separatist views?  Will
conflicting testimony by coreligionists be accepted, either to
refute or explain these plaintiffs' assertions about the
centrality of the religious principle requiring that they remain
simple of the details of evil"?  If so, will the court be called
upon to decide whose position is most credible, whose views repre
sent the true Brethren faith and, finally, what is the relative
hierarchical significance of the Brethren's various beliefs and
practices?  How can such an inquiry be conducted consistent with
the rule that there is no "right of civil authorities to examine
the creed and theology of [a c]hurch and to factor out what in
its * * * considered judgment are the peripheral * * * aspects"
(Matter of Holy Spirit Assn. v. Tax Commn., supra, 55 N.Y.2d at
527, 450 N.Y.S.2d 292, 435 N.E.2d 662)? These are all important
questions, which the majority, regrettably, leaves unanswered.

Furthermore, I cannot agree that the question of whether there is
a "threat to the continued existence" of the sect as a religious
community is a legally significant issue precluding summary
relief. [dissent footnote 2]  To be sure, the pages in the Yoder
opinion that the majority cites make reference to substantial
"interfer[ence] with the [child's] religious  development  * * *
and his integration into the [community's] way of life," the
"very real threat of undermining the [religious] community * * *
and religious practices" and the grave "endanger[ment] if not
destr[uction of] the free exercise of [the litigants'] religious
beliefs" (406 U.S. at 218-219, 92 S.Ct. at 1534-35; see also,
id., at 209-212, 234-236, 92 S.Ct. at 1530-1532,1542-1544).  But
those references were included merely to demonstrate how serious
the impact of compulsory State education would be under the
particular facts of the case.  Nothing in the Yoder opinion
suggests that the Free Exercise Clause's protections are limited
to State requirements that threaten the very existence of the
religion and/or the religious community.  Indeed, if that were
the test for invoking the First Amendment's protective mantle,
the State could, for example, require Jewish or Muslim school
children whose families observe special religious dietary laws to
eat pork-based food products, since such  "minor" breaches of
those groups' religious practices could not be said to threaten
the vitality of the religious community itself.  Plainly, that is
not, and cannot be, the law (cf, People v. Lewis, 68 N.Y.2d 923,
510 N.Y.S.2d 73, 502 N.E.2d 988 [where State interest may be
satisfied in other ways, prisoner may not be required to submit
to an act which would "impinge upon" his sincerely held religious
beliefs]).

The majority apparently does not disagree in principle, but
nonetheless believes that the exacting standard it posits should
be applied here because, in its view, plaintiffs' claim falls
within the line of cases denying relief to sects seeking to avoid
even the mere exposure to ideas that offend their religious
principles (see, majority opn., at 124-125, nn. 4 & 5, at 174,
nn. 4 & 5 of 551 N.Y.S.2d, at 427, nn. 4 & 5 of 550 N.E.2d [and
cases cited therein]).  Yoder (supra) is then treated in the
majority's analysis as an "exception" to this line of cases (see,
majority opn., at 125-126, at 174 of 551 N.Y.S.2d, at 427 of 550
N.E. 2d), with all of the rigid, fact-specific limitations that
ordinarily accompany exceptions to well-established, well-
regarded legal rules.  It is this characterization of the issue
in the present case, as well as of the significance of the Yoder
decision, that lies at the heart of our disagreement.

In my view, neither this case, nor Yoder (supra), is simply an
example of a religious sect's effort to obtain First Amendment
protection from the "mere exposure" to inimical ideas.  Instead
this case, like Yoder (supra), is an attempt by plaintiffs to
secure a judicial dispensation from having to perform an
affirmative act that their religion forbids. Although the gist of
what plaintiffs seek to avoid is, indeed, "exposure" to a certain
category of information, plaintiffs are motivated not merely by a
desire to steer clear of offensive or contradictory ideas (cf,
Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058, supra), but
rather by a religious precept that requires them, and their
children, to remain innocent of "the details of evil."  In a
sense, plaintiffs are forbidden by their religious beliefs to eat
of the tree of secular knowledge on the subject of AIDS in the
same way that some observant Jewish and Muslim individuals are
forbidden to eat pork-and in the same way that the Amish
individuals in Yoder were forbidden to send their  teen-age
children  to  public  high school, thereby removing them from the
traditional farm community at a time that was critical to their
spiritual development (see, 406 U.S. at 209, 211, 218, 92 S.Ct.
at 1530, 1531, 1534).  Accordingly, plaintiffs are entitled to
the same protection, without regard to whether the continuing
vitality of their religious community has been threatened.

The final "fact question" that the majority identifies concerns
the importance of the State interest that is sought to be
vindicated here.  In this regard, I agree with the majority that
although society's interest in controlling the spread of AIDS is
compelling, it does not necessarily follow that the State's
interest in furnishing widespread AIDS education provides a
compelling basis for overriding the religious beliefs of school
children's parents.  Where the majority and I differ is, once
again, on the questions of the sufficiency of the State's
submissions in opposition to summary judgment and the likelihood
that a further hearing will reveal additional, legally relevant
facts.

As the majority notes, once the impairment of religious freedom
has been established, the State has the burden of showing with
"particularity  how  its  admittedly strong interest in
compulsory education would be adversely affected by granting an
exemption" (Wisconsin v. Yoder, supra, at 236, 92 S.Ct. at 1543).
Here, although the State has submitted a substantial amount of
background material concerning the need for AIDS education, its
submissions do not explain with the necessary specificity why an
exemption should not be granted to this small and insular
religious group. As in Yoder, the defendants' observations that
Brethren occasionally withdraw from the sect and that outsiders
are occasionally invited to join are too speculative to consti
tute a "compelling" State interest, at least in the absence of
some factual showing that such movement between the Brethren and
the larger community is statistically significant (see, Wisconsin
v. Yoder, supra, at 224-225, 92 S.Ct. at 1537-1538). Furthermore,
the State has not introduced facts, in evidentiary form or
otherwise, to support its conclusory claim that the moral
training which the Brethren routinely provide, coupled with their
promise to instruct their children specifically about the AIDS
virus (see, majority opn., at 130, at 177 of 551 N.Y.S.2d, at 430
of 550 N.E.2d), are not an adequate substitute for the secular
education that the State proposes to provide.

Finally, as a matter of common sense and experience, I have
difficulty crediting any claim by the State that its interests
would be seriously impaired by granting an exemption to these
plaintiffs.  As the majority suggests (majority opn., at 128, at
175 of 551 N.Y.S.2d, at 428 of 550 N.E.2d), the statutory and
regulatory provisions for granting exemptions on a case-by-case
basis belie any potential contention by the State that strict
universal AIDS education, without exception, is necessary to
satisfy its interests.   Moreover,  although education is,
unfortunately, the most effective weapon we now have against this
contemporary plague, we should not lose sight of the fact that
knowledge is not the equivalent of a serum that would ensure
immunity (see, Matter of Hofbrauer, 47 N.Y.2d 648, 419 N.Y.S.2d
936, 393 N.E.2d 1009; cf, Jacobson v. .Massachusetts. 197 U.S.
11, 25 S.Ct. 358, 49 L.Ed. 643).  To the contrary, the efficacy
of education in this context might well be questioned, since the
individuals who are most at risk, such as intravenous drug users,
are also among those who are least susceptible to the influence
of educators.  Furthermore, given the nature of this disease and
the manner in which it is spread, it seems clear that prevention
depends upon a combination of personal factors, only one of which
involves clinical knowledge.  Equally critical are such factors
as an individual's choice of life-style and sense of self-esteem-
precisely the areas which the Brethren's moral and spiritual
training addresses.

In the final analysis, the continued existence of our pluralistic
society depends not only upon our commitment to tolerating
minority viewpoints, but also upon our willingness to accommodate
them. Further, I believe that we jeopardize an important element
of our social structure when we too readily displace the moral
and spiritual guidance that may be derived from family and church
with the secular and purportedly value-neutral instruction that
our public schools are equipped to provide.  While I share the
abhorrence of ignorance that characterizes much of modern western
culture, I cannot overlook the fact that our contemporary faith
in the power of secular education has not immunized us from such
social ills as rampant drug abuse, an inordinately high drop-out
rate, family dissolution and spiritual demoralization, as well as
socially transmitted diseases such as AIDS. Accordingly, like
the Yoder court (406 U.S. at 223-224, 92 S.Ct. at 1537-1538, su
pra), I am most reluctant to assume that today's prevailing
culture, which places its faith in objective knowledge, is
"right" while plaintiffs and others like them, who place their
faith in moral and spiritual guidance, are "wrong."

For these reasons, I would prefer to simply grant plaintiffs'
request for summary judgment and direct defendants to exempt
plaintiffs' children from the AIDS curriculum to which they
object. In light of the limited number of individuals involved,
the uniqueness of plaintiffs' sect and the narrowness of the
exemption from compulsory education that they seek, I can see no
compelling reason to deny them that relief without further
litigation.  Accordingly, I dissent and vote to reverse by
denying defendants' motion for summary judgment and granting
plaintiffs' summary judgment motion.

BELLACOSA, Judge (dissenting).

I dissent and vote to affirm the order of the Appellate Division
upholding the constitutionality of the State Commissioner of
Education's AIDS Education Program (8 NYCRR 135.3[b][2]; [c][2])
as applied to plaintiffs.  Essentially for the reasons expressed
in the Per Curiam opinion of the Appellate Division, its order
modifying the Supreme Court's grant of summary judgment to
defendants dismissing the lawsuit as unfounded should be
sustained.

The Commissioner's mandatory AIDS Health Education Program,
approved by the State Board of Regents, is vital and valid. The
regulation at issue requires all primary and secondary school
students to receive:  "[A]ppropriate instruction  concerning * *
* AIDS * * *  Such instruction shall be designed to provide
accurate information to pupils concerning the nature of the
disease, methods of transmission, and methods of prevention [and]
shall stress abstinence as the most appropriate and effective
premarital protection against AIDS (8 NYCRR 135.3[b][2];
[c][2])." The regulation further provides that students may be
excused from a lesson or lessons upon a parent's written
assurance that suit-able home instruction will be substituted.
Plaintiffs' children have availed themselves of this procedural
entitlement and were excused from five lessons  . In this
litigation they press for a total exclusion for themselves, and
presumably on precedential application for other persons or
groups who may seek exemption on constitutional freedom of
religious expression grounds.

The simple landscape on which this controversy is viewed includes
the conceded compelling State interest of educational instruction
in the transmission and prevention of a public health menace-the
AIDS epidemic-and the pervasive, voluntary integration of the
Brethren believers in work, education and dwelling within their
chosen general community.  Indisputably then, this is not a Yoder
case (Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d
15).  It is not at all like that case, and even is
distinguishable in a constitutionally crucial respect-here,
plaintiffs' children were granted a substantial exemption
pursuant to the challenged regulation itself, which also
authorizes that flexible outlet.

The majority recognizes (majority opn., at 126, at 174 of 551
N.Y.S.2d, at 427 of 550 N.E.2d), as the United States Supreme
Court has taught, that Yoder is an extraordinarily exceptional
dispensation from the primacy of a universal public educational
curriculum-in this case. a primacy enhanced by the urgency of a
rampant public health problem, thus far apparently controllable
only by educational means. Fragmentation of the curriculum,
especially in this area, and segmentation of the student
population are not warranted and plaintiffs have not advanced
sufficient proof, within the summary judgment rubric, to
withstand the defendant Commissioner's record presentations of a
dominant, compelling State interest.

The essential "factual dispute", forming the primary premise for
this court's rationale upsetting the lower courts' grant of
summary judgment to the Commissioner of Education, springs from
an assertion by plaintiffs that they have "minimal" contacts in
the community and from a claimed sufficient relatedness to Yoder
(supra). Denominating their claims as fact issues, however,
cannot so facilely justify this inconclusive procedural remedy
not even sought by plaintiffs, because the claims are facially
and evidentially, in the summary judgment sense, belied by the
realities and the record.  The Brethren's conceded participation
in the community, especially in the core relevant category of the
students' otherwise full involvement in their public school
education, is substantial, not  minimal".  Moreover, these
primary attributes of community, i.e., work, school and dwelling,
cannot be diminished or denied.  just because the Brethren find
it "not feasible * * * to do otherwise." (Majority opn., at 127,
at 175 of 551 N.Y.S.2d, at 428 of 500 N.E.2d). The facts are the
facts for whatever reason-and if undeniable, they are not
triable.  Indeed, some categories of cases are, for transcendent
jurisprudential and policy reasons, particularly suitable to
summary judgment resolution (see, Immuno, AG. v. Moor-Jankowski,
74 N.Y.2d 548, 561, 549 N.Y.S.2d 938, 549 N.E.2d 129). This is
such a case and such a category, and the record supports only
that relief in my view.

In complete context, the plaintiff Brethren's request, based on
their sincere and free exercise of religious beliefs under the
First Amendment to the United States Constitution, cannot
therefore prevail on this record because no genuine, triable
issues of fact are evident.  Plaintiffs are not entitled to the
trial the majority affords them, nor the summary judgment which
Judge Titone would grant.  Rather, the constitutionality of the
State Education Commissioner's AIDS Education Program should be
upheld as both lower courts have ruled and the children should
get on with their full and necessary education.



WACHTLER, C.J., and SIMONS, ALEXANDER and HANCOCK, JJ., concur
with KAYE, J.

TITONE, J., dissents and votes to reverse in a separate opinion.

BELLACOSA, J., dissents and votes to affirm in another opinion.

Order modified, with costs to plaintiffs, by denying defendants'
motions for summary judgment and, as so modified, affirmed.

OPINION FOOTNOTES

1.   Section 16.2 of the Rules of the Board of Regents provides:
"A petition. duly verified, may be filed with the commissioner by
a proper person authorized to represent a religious group on a
statewide basis asking that the children of parents or guardians
professing the religion of such group be excused from such part
of the study in health and hygiene as may be in conflict with the
tenets of the religion of such group.

2.   Education Law  3204(5) provides: "Subject to rules and
regulations of the board of regents, a pupil may, consistent with
the requirements of public education and public health. be
excused from such study of health and hygiene as conflicts with
the religion of his parents or guardian. Such conflict must be
certified by a proper representative of their religion as defined
by section two of the religious corporations law."

3.   Plaintiffs have asserted no claim under the Free Exercise
Clause of the State Constitution

4.   Judge Titone's dissent erroneously likens this case, and the
long-established line of "mere exposure  cases, to the very
different cases concerning governmental requirement of affirma
tive conduct that is offensive to one's religious beliefs (see,
Mozert v. Hawkins County Bd. of Educ., 827 F.2d 1058 (6th Cir.)
[elaborating on the distinction] ).  Compelling Jewish or Muslim
school children to violate their dietary laws by eating pork, or
requiring prisoners to submit to acts that would impinge on
sincerely held religious beliefs (dissenting opn. of Titone, J.,
at 135-136, at 180-181 of 551 N.Y.S.2d, at 433-434 of 550
N.E.2d), would be illustrations of the more intrusive
"affirmative conduct" cases (see also, Torcaso v. Watkins, 367
U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 [invalidating an oath of
belief in God required of a notary public]; Board of Educ. v.
Barnette, 319 U.S. 624, 63 S.Ct. 1178. 87 L.Ed. 1628 [compulsory
secular flag salute violates First Amendment] ).

5.   See, e.g.. Grove v. Mead School Dist. No. 354, 753 F.2d
1528, 1543 (9th Cir.) (Canby, J., concurring) (stating that mere
offense at having textbook in school curriculum does not support
Free Exercise Clause). cert denied 474 U.S. 826, 106 S.Ct. 85, 88
L.Ed.2d 70; Wilson v. Block, 708 F.2d 735, 741 (D.C.Cir.)
(finding that government actions that merely offend or cast doubt
on religious beliefs do not violate Free Exercise Clause), cert.
denied 464 U.S. 956,104 S.Ct. 371, 78 L.Ed.2d 330; Williams v.
Board of Educ., 388 F.Supp. 93, 96 (S.D.W.Va.) (declaring that
First Amendment does not preclude schools from teaching material
offensive to religions), a/Id. 530 F.2d 972 (4th Cir.);  Davis v.
Page, 385 F.Supp. 395, 404 (D.N.H.) (holding that First Amendment
offers no protection from health course found to be distasteful).

6.   Judge Titone's concluding discussion in his dissenting
opinion is both misdirected and undeservedly critical of the
court (see, dissenting opn. of Titone, J., at 137-138 at 181-182
of 551 N.Y.S.2d, at 434-435 of 550 N.E.2d).  By reversing Supreme
Court and the Appellate Division and giving the Brethren an
opportunity to prove their allegations. we pronounce no "right"
or "wrong."  It will now be for the trial court, applying the law
to a proper factual record, to determine which party should
prevail.



DISSENT FOOTNOTES

1. Indeed, during the oral argument in this court, the attorney
for defendant school district himself demonstrated the legitimacy
of plaintiff's concerns when he asserted that an important goal
of the AIDS curriculum was to inculcate and teach children that
AIDS victims are not "bad people."  While that message is
obviously a correct and worthwhile one, it is plainly inimical to
plaintiff's core beliefs.  In fact, such value-laden instruction
based on the beliefs of the surrounding community strikes at the
very heart of the isolationist principles upon which plaintiffs'
religious practices are built.

2.   Although the majority has stopped short of squarely stating
that "the law actually requires such extreme injury" (majority
opn., at 128, at 175 of 551 N.Y.S.2d. at 428 of 550 N.E.2d), its
holding certainly suggests that conclusion, since plaintiffs'
averments on the issue. and defendants' "steadfast" assertions to
the contrary, would not be sufficient to defeat summary judgment
unless the issue were deemed legally material to the resolution
of the controversy.

3.   The majority takes issue with this discussion,
characterizing it as "misdirected" and "undeservedly critical of
the court" (majority opn., at 130, n. 6, at 177, n. 6 of 551
N.Y.S.2d, at 430, n. 6 of 550 N.E.2d).  However, it is not my
intention to criticize the values the majority has expressed.
most of which 1 share (see, 131, 136, at 177, 181 of 551
N.Y.S.2d, at 430, 434 of 550 N.E.2d infra).  Rather, I am simply
exercising my prerogative-and, indeed, my duty-as an appellate
Judge to expose the values and beliefs that underlie my legal
position.