Protecting Orthodox Jewish Schools | Rabbi Moshe Hauer and Michael A. Helfand
In the 1972 Supreme Court case Wisconsin v. Yoder, Amish Americans challenged Wisconsin’s Compulsory Education Law, which required children to attend public or private school until age sixteen. They argued the law threatened their religious way of life because traditional Amish families typically pull children out of school after eighth grade. In their view, home-based Amish vocational education could prepare minors for full and productive lives as democratic citizens while upholding Amish religious principles. At the time, the Union of Orthodox Jewish Congregations of America—along with a wide range of other Jewish organizations from across the denominational spectrum—joined a brief in favor of the Amish that echoed those two core tenets. “The American Jewish community,” the memoir explains, “has a strong interest in universal secular education for children,” but also a “strong interest in religious freedom and in a religiously and culturally pluralistic America.” To balance the two, it would be necessary to “resolve[ing] a conflict of competing interests, all occupying high places in our democratic scales of justice.
This shock remains as important today as it was fifty years ago. For the third time in five years, the New York State Department of Education (NYSED) is proposing new rules for evaluating nonpublic schools. The state alleges that a small cluster of Orthodox Jewish schools provide substandard education in basic general education classes. For more than a century, New York law has required that students in nonpublic schools receive an education “substantially equivalent” to that of a public school. Orthodox Jewish schools, or yeshivas, overwhelmingly meet this standard through a dual curriculum, including both Jewish studies and general studies. Overall, these schools have an excellent history of raising their students to become responsible and productive citizens dedicated to family and community.
The government, of course, has a responsibility to ensure that all minors receive an adequate education so that they can be full and productive members of democratic society. But in discharging this responsibility, the state must ensure that its rules do not go too far. It must take due account of the dual curriculum model specific to Orthodox Jewish schools and respect the religious way of life that these schools perpetuate. New York’s proposed new rules fail in this regard and would compromise the ability of some Orthodox Jewish communities to pass on their faith to the next generation.
In 2019, the NYSED proposed sweeping regulations that imposed a host of requirements on non-public schools, threatening schools with closure if they failed to meet rules that went beyond reasonable substantial equivalency requirements. The proposed new regulations are a step forward as they mostly avoid bureaucratic excesses, emphasizing core subjects such as science, math, social studies and language arts. They also create several “pathways” for schools to demonstrate that their education is, in fact, substantially equivalent, including registration with the New York Board of Regents, accreditation by a licensed accreditor, or use of NYSED-approved ratings.
That being said, the proposed regulations require significant work if they are to properly balance the values at the heart of religious education. First, they still go too far in terms of requirements. The proposed list of required fields of study goes beyond general subjects to include courses in physical education and “related subjects”, patriotism and citizenship, road safety and traffic regulations, and prevention fires and arson. While these are all valuable topics, this list strays from the basic requirements that should be legally necessary for a school to keep its doors open. And it sets a dangerous precedent: if Jewish schools are to embrace government oversight to ensure substantial equivalence, they need safeguards, built into the regulations themselves, that future bureaucrats won’t just keep adding to that list, using this proposed framework to incorporate even more peripheral educational requirements into the investigation of substantial equivalence.
Second, the proposed rules must not open the floodgates to litigation against non-public schools. It is one thing to allow the NYSED and local school authorities to assess the substantial equivalence of non-public schools. It is quite another, as the proposed rules currently do, to allow the broad class of “grieves” to appeal to the commissioner. Such authority to file a grievance could, if not further restrict, put non-public schools in the position of repeatedly defending the quality of their education even after the government has approved it. The costs for Jewish schools could be significant and the uncertainty could leave schools in an untenable state of bureaucratic purgatory, diverting energy and resources from the core educational mission.
Third, and perhaps most importantly, NYSED must, in conjunction with Jewish schools and other Jewish institutions, ensure that there are accreditors and assessors sufficiently familiar with the distinctive qualities of Jewish education. to properly assess Jewish schools for substantial equivalence. The importance of culturally sensitive assessments stems directly from the central feature of Jewish day schools – their dual curriculum – which includes both Jewish studies (such as the Bible and Talmud) and general studies (such as math, science and English). For many Jewish educational institutions, these two fields of study are not meant to be isolated from each other, but integrated. As a result, learning goals typically associated with general studies – such as language arts or social studies – are often pursued under the umbrella of Jewish studies. To propose assessment rules without a culturally sensitive assessment infrastructure is to doom the process from the start.
Some Jewish schools, and the people who teach and learn there, do not match the images of education in the minds of most 21st-century Americans. But our society should support these minority communities in pursuing their way of life. Majority notions can too easily, without proper verification, produce evaluations that fail to recognize the benefits of an integrated educational program. In 1972, navigating very similar concerns in Wisconsin v. Yoderthe Supreme Court ruled in favor of the Amish, noting “[t]States have long enjoyed a friendly and effective relationship with Church-sponsored schools, and there is no reason to assume that in this related context reasonable standards cannot be established. What was true then remains true now. The proposed regulations have a long way to go to best protect the religious commitments at the heart of the Orthodox Jewish community.
Rabbi Moshe Hauer is the executive vice president of the Union of Orthodox Jewish Congregations of America.
Michael A. Helfand is the Brenden Mann Foundation Chair in Law and Religion at the Pepperdine Caruso School of Law and Visiting Professor at Yale Law School.
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