(dissenting). I respectfully dissent. The challenged legislation was not designed to endorse or enhance religion, rather it provides a permissible solution to the religious/ cultural dilemma faced by the people of the Village of Kiryas Joel (hereinafter Village) in meeting the needs of their handicapped children and, as such, passes Federal and State constitutional muster. The majority appears to have adopted a predominant motive analysis which suggests that once the legislative effort to accommodate the needs of those involved was found to be unconstitutional, any attempt to accomplish the same objective in some other legislative fashion is constitutionally unsound. However, a true constitutional analysis reveals that the challenged law (L 1994, chs 279, 241 [hereinafter the current law]) successfully overcomes the constitutional impediments found in the prior legislation (L 1989, ch 748 [hereinafter the prior law]) by the United States Supreme Court in Board of Educ. of Kiryas Joel Vil. School Dist. v Grumet (512 US 687, affg 81 NY2d 518 [hereinafter Kiryas Joel I]). In my view the guidance provided by Justice O’Connor in Kiryas Joel I has been satisfied by the New York Legislature in the current law which is both generally applicable and religion neutral.
KIRYAS JOEL I
The First Amendment of the US Constitution provides, in relevant part, that "Congress shall make no law respecting an establishment of religion”. Known as the Establishment Clause, this amendment has been made applicable to the States by the Fourteenth Amendment. Notably, the United States Supreme Court has recognized that "the government may (and sometimes must) accommodate religious practices * * * without violating the Establishment Clause” (Hobbie v Unemployment Appeals Commn., 480 US 136, 144-145; see, Wisconsin v Yoder, 406 US 205; Sherbert v Verner, 374 US 398).
In Kiryas Joel I, the United States Supreme Court did not utilize the Lemon test1 in concluding that the prior law, which directly created the Kiryas Joel Village School District (herein*14after KJVSD), violated, the Establishment Clause. Justice O’Connor, in her concurring opinion, observed that not every Establishment Clause case is suitable for the Lemon test analysis and that Kiryas Joel I called for a different approach because it fell into a category of cases which involve "government actions targeted at particular individuals or groups, imposing special duties or giving special benefits” (Kiryas Joel I, 512 US 687, 720, supra [O’Connor, J., concurring]).2 The United States Supreme Court questioned the "neutrality” of the prior law, noting in Kiryas Joel I that "[a]uthority over public schools belongs to the State ** * * and cannot be delegated to a local school district defined by the State in order to grant political control to a religious group” (512 US, supra, at 698).
The United States Supreme Court in Kiryas Joel I found the prior law to be violative of the Establishment Clause essentially on the ground that, because the Legislature passed such case-specific legislation which directly created KJVSD, there was no mechanism or opportunity for the Court to assess or assure the neutrality of the legislation, i.e., there was no way to evaluate whether the Legislature was being neutral and would adhere to the principles of neutrality by avoiding the favoring of religion over nonreligion or the favoring of one religion over other religions (see, Grand Rapids School Dist. v Ball, 473 US 373, 382; Everson v Board of Educ., 330 US 1, 15; see also, Tribe, American Constitutional Law § 14-7, at 1188-1201 [2d ed]). The plurality opinion suggested a different result if KJVSD had received its authority as "one of many communities eligible for equal treatment under a general law” (Kiryas Joel I, 512 US, supra, at 720). The key infirmity in the prior law was in its singling out of the Village for preferential treatment based on its religious practices, thereby conferring a benefit on the Satmarers, a single religious sect, rather than acting in a manner neutral to religion as, for example, was accomplished with the tax exemptions in Walz v Tax Commn. *15(397 US 664, supra). The United States Supreme Court found the prior law to have exceeded the permissible scope of accommodation because the "special treatment” afforded this sect "extended] the benefit of a special franchise” to it, thus failing to honor the command of "neutrality as among religions” (Kiryas Joel I, 512 US, supra, at 705, 707). Finally, the Court observed that the Legislature started with a village which was properly created by a religious sect and then purposely drew a school district coterminous with it in order to separate Satmarers from nonSatmarers, thereby sufficiently favoring a particular religion in violation of the Establishment Clause, i.e., it conferred State power over education to an electorate defined by its religious beliefs "in a manner that fails to foreclose religious favoritism” (512 US, supra, at 710).
Justice O’Connor’s concurrence outlines potential permissive governmental accommodation through religion-neutral laws and suggests a cure, i.e., an accommodation "implemented through generally applicable legislation”, such as allowing all villages to operate their own school districts, or setting forth "neutral criteria” that a village must meet to have its own district (512 US, supra, at 717 [O’Connor, J., concurring]). Justice Kennedy found no constitutional infirmity in the objective of the prior law, i.e., alleviating a burden on a group’s religious practices which did not result in a consequential burden on nonadherents or impermissible favoritism toward Satmarers, but found that it was accomplished in a forbidden manner by drawing political boundaries on the basis of religion (512 US, supra, at 729 [Kennedy, J., concurring]). Justice Kennedy’s concurrence emphasizes a key distinction between a voluntary association which leads to a political community comprised of people of one religion, such as the formation of the Village in 1977 (see, Village Law art 2), and the "forced separation that occurs when the government draws explicit political boundaries on the basis of peoples’ faith” (Kiryas Joel I, 512 US, supra, at 730 [Kennedy, J., concurring]).
CURRENT LAW
In the instant case, plaintiffs, supported by affidavits of experts, contend that the demographic criteria set forth in the current law are not neutral because they are crafted so that only one municipality in the State — the Village of Kiryas Joel — meets them; therefore, because the statute, by its very *16terms, applies only to municipalities existing at the time of its enactment, plaintiffs argue that the current law will never apply to any municipality other than the Village unless an existing municipality evolves so as to meet these criteria.3 In contrast, KJVSD offers the affidavit of its own expert who does not disputé the calculations of plaintiffs’ experts, but demonstrates that at least one other preexisting municipality in the State presently comes very close to meeting all of the criteria enumerated in the current law, and further concludes that it is highly probable that this municipality, and others, will meet the criteria in the future.
Plaintiffs do .not take issue with these conclusions. Moreover, plaintiffs do not dispute that, should other municipalities meet all of the demographic criteria and choose to create their own school districts, the delegation of authority to the boards of education of those school districts will be made irrespective of the religion of the recipients of that authority. It is significant that the general authorization found in the current law, which authorizes all qualifying municipalities to create their own school districts, is analytically comparable to the general authorization found in Village Law article 2 (a religious-neutral self-incorporation procedure) which authorized the creation of the Village. Accordingly, while it is clear that the religious preferences of the Satmarers were a part of the motivation for the creation of the current law, application of the statute is not limited, by its terms, to members of that religious group.
As further proof of their claim that the current law is not neutral, plaintiffs assert that the splintering of existing school districts runs counter to the State’s general policy of consolidating school districts, a concern which was raised by the United States Supreme Court in Kiryas Joel I (512 US 687, 700). However, the criteria contained in the current law are facially religion-neutral and designed to protect the interests of both the new and old school districts; furthermore, the Legislature was clearly acting within its prerogative in carving out.an exception to its general policy, especially where compelling *17or unusual circumstances warrant such an exception.4
Turning next to the United States Supreme Court’s imperative, as reiterated in Kiryas Joel I, that a statute must contain "an ’effective means of guaranteeing’ that governmental power will be and has been neutrally employed” (512 US, supra, at 703, quoting Larkin v Grendel’s Den, 459 US 116, 125), plaintiffs assert that the current law’s application to only preexisting municipalities provides ’’no assurance that the next similarly situated group seeking a school district of its own will receive one” (Kiryas Joel I, 512 US, supra, at 703). However, precisely because the current law does not apply to municipalities created after its enactment, its nonapplicability, like its applicability, is religion-neutral and, therefore, it does not offend the Establishment Clause. That is to say, were another group of Satmarers to form a village in the future meeting all other criteria of the current law, and another religious or nonreligious group did the same, neither of these new municipalities would qualify. They would be disqualified not by religion or by nonreligion, but by the neutral criterion of the date of their formation. Thus, because the current law applies, or does not apply, to municipalities irrespective of religion, it does not violate the Establishment Clause.
It is my view that by enacting the current law, a statute of general application which confers its benefit uniformly upon all qualifying municipalities, the Legislature has met the Establishment Clause concerns raised by the majority and Justice O’Connor in Kiryas Joel I.
LEMON TEST
The first prong of the Lemon test (Lemon v Kurtzman, 403 US 602, supra), whether there is a secular purpose for the legislation, aims at preventing a government decisionmaker from abandoning neutrality and acting with the intent to promote a particular point of view in religious matters (see, Corporation of Presiding Bishop v Amos, 483 US 327, 335); it is *18rarely at issue in cases where the education of children is involved (see, Parents’ Assn, v Quinones, 803 F2d 1235, 1240). In order to invalidate such a statute, a court must find that its passage was wholly motivated by a religious purpose (see, Wallace v Jaffree, 472 US 38, 56; see also, Bowen v Kendrick, 487 US 589, 604, n 8; Lynch v Donnelly, 465 US 668, 680). The current law strives to meet the educational needs of municipalities such as the Village. Its secular purpose is apparent from the language of the statute, which filled a gap in existing law by allowing municipalities to form a new district when the educational needs of the community so warrant.5 Clearly, the purpose of this statute is not to advance any religion; rather, its utilization by the Village allows that community a solution for the secular difficulties experienced by its handicapped children which the Satmarers’ unique lifestyle has spawned. It was necessary to effect a solution here as well as in other cases in which there is a special need that the existing laws did not address.
Under the second Lemon prong, the "principal or primary effect [of the statute] must be one that neither advances nor inhibits religion” (Lemon v Kurtzman, 403 US 602, 612, supra). The "primary effect” inquiry has been refined by the United States Supreme Court in its subsequent opinions to assess "whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an *19endorsement, and by the nonadherents as a disapproval, of their individual religious choices” (Grand Rapids School Dist. v Ball, 473 US 373, 390, supra). The statute may not favor, prefer or promote religion (see, Allegheny County v Greater Pittsburgh ACLU, 492 US 573, 590-593). The primary effect of the general provisions of the current law, from which the mention of anything religious is totally absent, is on municipalities at large and is not confined to the single municipality of the Village. As Supreme Court held in this case, the effect "is the expansion of a municipality’s ability to meet its local educational needs” (Grumet v Cuomo, 164 Misc 2d 644, 651, supra).
In this instance, the Village is able to meet its immediate educational needs by continuing to provide appropriate public school special education to its handicapped students. The passage of the current law in the wake of Kiryas Joel I (supra) is only an indication that a specific problem required a constitutionally permissible solution. This does not signify a governmental endorsement of Satmar religious precepts; rather, the Legislature merely addressed a gap in the law that failed to provide for an exceptional community circumstance, and which became apparent as the problem of educating the special needs children of the Village unfolded. Since the statutory criteria are based on conditions that can and do change, the fact that only the Village has so far formed a new district does not transform a general statute which other municipalities may use, once they qualify, into a special privilege for only the Sat-mar sect (see, Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358, supra). Furthermore, the United States Supreme Court has long recognized " 'that not every law that confers an "indirect,” "remote,” or "incidental” benefit upon religious institutions is, for that reason alone, constitutionally invalid’ ” (Grand Rapids School Dist. v Ball, supra, at 393; see, Wallace v Jaffree, 472 US 38, 70, supra [O’Connor, J., concurring]).
The final prong of the Lemon test is the proscription against fostering an excessive entanglement of the State with religion. Plaintiffs’ contention, that a KJVSD school board composed entirely of members of the Satmar sect violates this prong, is without merit. Their argument is premised on the supposition that the religious leadership controls all aspects of life in the Village and, therefore, special monitoring is necessary to ensure that KJVSD’s operation is not impermissibly influenced. While their religion affects how the Satmarers live, this *20does not mean that they cannot also act in secular civic capacities.6
Moreover, there is nothing in the record to suggest nor does anyone contend that the school is operated in any manner which is inconsistent with that of any other public school, in full compliance with the Education Law and all pertinent regulations of the Education Department. The school is secular and has had no untoward interference from the religious leaders or institutions. The superintendent of the school is neither a Satmarer nor an orthodox Jew; he comes from outside the community, having worked for 20 years as an educator and administrator in New York City and has particular expertise and experience in bilingual special education. He states that defendant Board of Education and the community have been able to maintain a public school system without outside interferences. The staff comes from outside the Village and the curriculum is consistent with State regulations. KJVSD also accepts non-Satmarer students from outside the Village whose home districts place them there because they need the special services it offers. Plaintiffs have failed to establish that this school district created pursuant to the challenged legislation requires any extra monitoring by the State in order to maintain its already well-established secular operations. Accordingly, the current law survives scrutiny under all three prongs of the Lemon test.
NY CONSTITUTION
Finally, plaintiffs’ contention that the current law violates NY Constitution, article XI, § 3 is also without merit; they argue that because all members of KJVSD’s Board of Education are members of the Satmar sect, KJVSD is under the de facto control of the sect. NY Constitution, article XI, § 3, commonly known as the Blaine Amendment, prohibits the State from, inter alia, using public money, or permitting it to be used, in aid "of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is *21taught” (emphasis supplied).7 In Matter of College of New Rochelle v Nyquist (37 AD2d 461, 466), this Court stated that "[t]o make sense of and to give purpose to this clause of the Blaine Amendment it must be construed to proscribe State aid where the affiliated religious denomination controls or directs the institution towards a religious end; where the institution is controlled or directed to a degree so as to enable the religious authorities to propagate and advance — or at least attempt to do so — their religion”. In other words, "[t]he question is whether [KJVSD is] controlled or directed by a religious denomination so as to inculcate or attempt to inculcate the doctrine and faith of the denomination” (supra, at 467).
Plaintiffs implicitly suggest on appeal that because the Board of Education of KJVSD is elected by residents of the Village, who are undoubtedly Satmarers, it must be presumed that they are advancing their religion through the school. However, plaintiffs have put forth no proof to support this perspective. Moreover, "[m]ere affiliation or a sharing of administrative control by a denomination will not, in and of itself, bring the institution within the proscription of the statute; such a situation cannot be said to have caused religion to so 'pervade’ the atmosphere of the [institution] as to effectuate religious control or direction by a religious denomination” (supra, at 466). KJVSD submitted the affidavit of the District Superintendent of the Orange-Ulster Supervisory District, whose geographic responsibility includes KJVSD; he asserts that the educational program "is being conducted in a completely secular, religious-neutral manner”. The Superintendent of the Monroe-Woodbury School District avers further that direct instruction is being given by secularly dressed teachers to mixed classes of boys and girls; that English is the primary language of instruction; that female teachers are teaching male students; that course materials are secular and nonreligious; that the school facility is secular in appearance without any display of religious indicia; and that no religious subjects are being taught.
In Matter of College of New Rochelle v Nyguist (supra), this Court determined that a college sponsored by a religious order of’Ursuline Nuns was not under the control or direction of a religious denomination; we considered the totality of the cir*22cumstances, including the fact that the nuns comprised only one third of the faculty, and determined that the nuns were "not * * * controlled by religious affiliation insofar as their professional and academic activities [were] concerned” (supra, at 467). Considering the totality of the circumstances, plaintiffs have not shown that KJVSD is under the control or direction of a religious denomination within the meaning of that clause. Accordingly, the current law does not violate NY Constitution, article XI, § 3.
For the foregoing reasons, I would affirm Supreme Court’s judgment. The fact that the current law was an effort to overcome Kiryas Joel I (supra) does not render it a sham or an effort to subvert the Establishment Clause. The current law does not endorse religion — facially or in practical effect — i.e., it does not prefer, favor or promote religion (see, Edwards v Aguillard, 482 US 578, 593; Wallace v Jaffree, 472 US 38, 59-60, supra; Lynch v Donnelly, 465 US 668, 691, supra [O’Connor, J., concurring]).
Mikoll, J. P., White and Casey, JJ., concur with Mercure, J.; Spain, J., dissents in a separate opinion.
Ordered that the judgment is reversed, on the law, without costs, summary judgment granted in favor of plaintiffs and it is declared that Laws of 1994 (ch 241) is unconstitutional as violative of the Establishment Clause of the First Amendment of the US Constitution.
The tripartite analysis under the Establishment Clause introduced in Lemon v Kurtzman (403 US 602, 612-613) requires: "First, the statute must have a secular legislative purpose; second, its principal or primary effect *14must be one that neither advances nor inhibits religion * * * [and third], the statute must not foster 'an excessive government entanglement with religion’ ” (quoting Walz v Tax Column., 397 US 664, 674).
As observed by Supreme Court in the instant case, "the state of the Supreme Court’s Establishment Clause jurisprudence appears to be in flux. * * * However, as stated by Justice White, writing for the majority in Lamb’s Chapel v Center Moriches Union Free School Dist, '[t]here is a proper way to inter an established decision and Lemon, however frightening it might be to some, has not been overruled’ (508 US 384, 395, n 7)” (Grumet v Cuomo, 164 Misc 2d 644, 649-650).
Notably, the Court of Appeals has held that a legislative act which affects only one institution at the time of its enactment can still qualify as general legislation, where it may well affect other members of the same class similarly situated (see, Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358).
The New York State Conference of Mayors and Municipal Officials, in its amicus brief, argues that, as an organization representing 553 of the State’s 640 cities and villages, it has a strong interest in the viability of the current law, because it expands municipal home rule by authorizing municipalities to organize new school districts whenever the educational interests of the community require it; the Conference of Mayors foresees that other qualifying municipalities may take advantage of the law in the future.
The Governor’s Memorandum states, in relevant part:
"Section 1504 of the Education Law specifically authorizes a district superintendent to organize a new school district from the territory of one or more school districts, and authorizes the district superintendents of two or more adjoining supervisory districts to form a joint school district out of the adjoining portions of their respective districts. These provisions do not, however, allow for a vote of either the school boards or the residents of the affected territories. In addition, even though there are many circumstances in which an existing political subdivision of the State may wish to form its own school district, there is no formal mechanism by which the governing body of a municipality can initiate the process toward the creation of a separate school district.
"This bill fills this gap in the law by authorizing municipalities, subject to appropriate approvals, to create school districts under certain circumstances whenever the creation of such a district is required by the educational interests of the community. Specifically, the bill adds a new section 1504 to the Education Law to authorize the creation of a new school district by any municipality situated wholly within a single central or union free school district, but whose boundaries are not coterminous with the boundaries of such school district” (Governor’s Mem, Program Bill No. 323-1994, at 3, Bill Jacket, L 1994, ch 241).
That the Village is inhabited exclusively by Satamarers does not preclude the Village’s municipal exercise of its rights under generally applicable State law to act on behalf of its residents (the creation of the Village has not been challenged); furthermore, to deny the Village all the rights of a municipality because its members are all of one sect would be to discriminate on the basis of religion and deny them their Free Exercise rights rather than merely avoid Establishment Clause problems (see, Kiryas Joel I, 512 US, supra, at 699; McDaniel v Paty, 435 US 618).
In Grumet v Board of Educ. (81 NY2d 518, 531-532, affd 512 US 687, supra), the Court of Appeals did not reach the State constitutional issue but noted that NY Constitution, article XI, § 3 "is based on a provision significantly different from the Establishment Clause, both in text and history” citing Judd v Board of Educ., 278 NY 200).