Protecting Orthodox Jewish Schools

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 the age of sixteen. They argued that the law threatened their religious way of life, as traditional Amish families typically remove children from school after eighth grade. In their view, Amish vocational instruction at home could prepare minors for a full and productive life as democratic citizens while still adhering to 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 support of the Amish that echoed these two core principles. “American Jewry,” the brief explained, “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 would require “resolv[ing] a clash of competing interests, all occupying high levels in our democratic scales of justice.”

This clash remains as salient today as it was fifty years ago. For the third time in five years, the New York State Education Department (NYSED) is proposing new rules for evaluating nonpublic schools. The state alleges that a small group of Orthodox Jewish schools are providing substandard instruction in core general studies courses. For over a century, New York law has required students in nonpublic schools to receive an education that is “substantially equivalent” to a public school education. Orthodox Jewish schools, or yeshivas, overwhelmingly meet this standard through a dual curriculum—including both Jewish studies and general studies. By and large, these schools have an excellent history of educating 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 adequate education so that they can be full and productive members of democratic society. But in fulfilling this responsibility, the state needs to make sure that its rules do not overreach. It needs to take adequate account of the distinctive dual-curriculum model of 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 undermine the ability of some Orthodox Jewish communities to pass down their faith to the next generation.

In 2019, the NYSED proposed wide-ranging regulations that imposed a host of requirements on nonpublic schools, threatening schools with closure if they failed to comply with rules that went beyond the reasonable demands of substantial equivalency. The new proposed regulations are a step forward, as they mostly avoid bureaucratic overreach, emphasizing core subjects such as science, math, social studies, and language arts. They also create multiple “pathways” for schools to demonstrate that their education is, in fact, substantially equivalent, including registration with the New York Board of Regents, accreditation by an approved accreditor, or the use of NYSED-approved assessments.

That being said, the proposed regulations need significant work if they are to correctly balance the values at the heart of religious education. First, they still go too far in terms of requirements. The proposed list of required areas of study goes beyond general subjects to include courses in physical education and “kindred subjects,” patriotism and citizenship, highway safety and traffic regulation, and fire and arson prevention. While these are all valuable subjects, this list veers from the core requirements that ought to be legally necessary to allow a school to keep its doors open. And it sets a dangerous precedent: If Jewish schools are to embrace government oversight to ensure substantial equivalency, they need guarantees, built into the regulations themselves, that future bureaucrats will not simply continue adding to this list, using this proposed framework to incorporate even more peripheral pedagogical requirements into the substantial equivalency inquiry.

Second, the proposed rules must not open the floodgates to litigation against nonpublic schools. It is one thing to empower the NYSED and local school authorities to evaluate the substantial equivalency of nonpublic schools. It is another thing, as the proposed rules currently do, to allow the broad category of “persons considering themselves aggrieved” to file an appeal with the commissioner. Such broad standing to file a grievance could, if not more narrowly cabined, put nonpublic schools in the position of repeatedly defending the quality of their education even after the government has approved it. The costs to 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 maybe most significantly, the NYSED must—in collaboration with Jewish schools and other Jewish institutions—ensure that there are accreditors and evaluators sufficiently familiar with the distinctive qualities of Jewish education to properly assess Jewish schools for substantial equivalency. The importance of culturally sensitive assessments derives 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 language arts). For many Jewish educational institutions, these two areas of study are not intended to be isolated from each other, but integrated. As a result, learning objectives typically associated with general studies—such as language arts or social studies—are often pursued under the Jewish studies umbrella. To propose rules for assessment without an infrastructure for culturally sensitive assessment is to doom the process from the start.

Some Jewish schools, as well as the people who teach and learn in them, don’t conform to the images of education in the minds of most twenty-first-century Americans. But our society should support these minority communities in their pursuit of their way of life. Majoritarian notions can all too easily, without a proper check, produce assessments that fail to acknowledge the benefits of an integrated educational program. In 1972, navigating very similar concerns in Wisconsin v. Yoder, the Supreme Court found in favor of the Amish, noting “[t]he States have had a long history of amicable and effective relationships with church-sponsored schools, and there is no basis for assuming that, in this related context, reasonable standards cannot be established.” What was true then remains true now. The proposed regulations have a ways 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 Pepperdine Caruso School of Law and Visiting Professor at Yale Law School.

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