No conceivable variety of liberalism can overcome the problem of religious liberty alone—but natural law offers hope for managing the challenge.
There were few Jewish citizens in the founding era, and they were certainly not a constituency that needed to be cultivated for political reasons. Nevertheless, President George Washington assured the “Hebrew Congregation” in Newport, Rhode Island that in the United States all citizens
possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
Despite Washington’s lofty promise, Jewish citizens were barred from holding political offices in many states and their ability to act upon their religious convictions was (and is) sometimes hampered by neutral laws of general applicability.
Yeshivas and Religious Freedom
Today, Jewish citizens constitute approximately two percent of the population of the United States, and about ten percent of them identify as Orthodox. Orthodox Jewish parents usually send their children to Jewish schools known as yeshivas. Modern Orthodox yeshivas provide an education very similar to public schools, but Haredi schools focus heavily on the study of the Torah and Talmud. These yeshivas are rigorous: boys (who receive more religious training than girls) often begin at 7:00 a.m. and end at 6:00 p.m. for middle school and 9:30 p.m. for high school. Secular subjects are taught, sometimes in Yiddish, for only a portion of the afternoon.
In 2011, a disgruntled graduate of a Haredi yeshiva formed Young Advocates for Fair Education (YAFFED). The group claims these schools do not provide instruction that is “substantially equivalent” to public schools as required by New York law. Due in part to pressure from the organization, in 2018 the New York state education commissioner issued guidelines that required private schools to teach 12 secular subjects at each grade level and stipulated that they must spend at least 17.5 hours a week on them. State and local officials were to inspect these schools to ensure that the guidelines were followed. In 2019, these regulations were declared to be in violation of the State Administrative Procedure Act, but yeshiva critics continue to advocate for similar guidelines.
Religious Liberty and Education: A Case Study of Yeshivas vs. New York explores this controversy from a variety of perspectives. Its editors, Jason Bedrick, Jay P. Greene, and Matthew H. Lee, recruited a fine array of philosophers, attorneys, and educators to consider the current conflict and its larger implications.
After an introduction that provides a helpful overview of the controversy, three authors consider philosophical perspectives on religious liberty in education. Arguing from a presumption against state coercion, Kevin Vallier contends that governments should only be able to intervene in private religious education if three conditions are met:
- The educational interest of children are significantly threatened,
- The intervention is the least coercive effective means to protect educational interests and
- The government has demonstrated its ability to secure the educational interests of the children better than the religious schools themselves.
Vallier believes that the state does not come close to meeting any of these conditions with respect to the yeshivas in question. These schools differ in method and outcomes from public schools, but it is not clear that some of these unique outcomes, such as students “highly proficient in Yiddish and Hebrew,” are undesirable. Indeed, Professor Moshe Krakoswki of Yeshiva University contends that yeshiva religion classes focus on careful consideration of texts in a manner that “more closely resemble[s] upper-level humanities coursework in a university than clerical training or contemplation of the Divine.”
From Horace Mann to Amy Gutmann, some advocates of public education have made no secret of their desire to impose particular beliefs and values on students. Ashley Berner and Rita Koganzon, in separate chapters, reject this proclivity as a fundamental violation of the rights of parents to educate their children according to their values. Both emphasize that there is no such thing as Rawlsian neutrality, and they agree that there is no good reason to insist, as Amy Gutmann does, that Orthodox Jewish children must be taught that for many people “eating pork is considered a reasonable way of life.”
Shifting from philosophy to law, Aaron Saiger and co-authors Howard Slugh and Devorah Goldman provide a good overview of Supreme Court cases relative to the controversy. Saiger effectively summarizes the key holdings of three early cases, Meyer v. Nebraska (1923), Pierce v. Society of Sisters (1925), and Farrington v. Tokushige (1927) as:
- Compulsory education is constitutional
- Parents have a constitutional right to refuse public education, but those who exercise that right can be required to secure private education instead, at their own expense.
- The state may regulate private schools for public purposes.
- Any such regulation of private education may not be so intrusive that it forces a private school to behave as if it were a public school, rendering it unable to carry out its particular mission.
These cases all involved the Due Process Clause of the Fourteenth Amendment, but of course the Haredi schools are religious schools, so they could make Free Exercise arguments similar to those made on behalf of Amish citizens in Wisconsin v. Yoder (1972). All three authors, however, agree that these arguments are unlikely to succeed in light of Employment Division v. Smith (1990).
What sort of regulations of Haredi schools are constitutionally permissible? Saiger, a law professor and former clerk for Ruth Bader Ginsburg, suggests that they may be heavily regulated and implies that they should be because “it is widely observed that unemployment and dependence upon public welfare are endemic in Haredi communities.” As evidence, he quotes a Pew study stating that 43 percent of Haredi families earn less than $50,000 annually, but he neglects to mention that the same study found that 56 percent of the general public fall below that line. The Pew study also reveals that 24 percent of Haredi families earn more than $150,000 annually, as opposed to 8 percent of the general public.
Saiger contends that the state may mandate the teaching of secular subjects, but that current requirements that they be taught in English may be unconstitutional. Rather than attempting to regulate the number of hours spent on secular subjects, he makes the sensible suggestion that the state require competency in different subjects.
Saiger, Slugh, and Goldman agree that state regulations that effectively prohibit a religious school from being religious are constitutionally suspect in the United States. Alas, as Charles Glenn makes clear, European countries are not so restricted. He describes a number of disturbing cases where government inspectors have given failing marks to otherwise outstanding private religious schools because of “unsatisfactory” student responses to questions such as “What do you think of Facebook?” and “What do you think of men being married to each other?”
The volume’s penultimate section focuses on the implications of this controversy for other religious communities. Avi Schick’s chapter on how it might affect other Jewish schools makes the excellent point that New York’s proposed guidelines and yeshiva critics focus inappropriately on the wrong inputs (e.g., number of subjects and hours spent) and the wrong outputs (e.g., median income of alumni). Critics should appreciate that many parents are more concerned about graduates’ “moral and character development, the values they live by, the faith they adhere to, the Torah they study, the families they build, and the communal bonds they sustain.”
The New York legislature adopted the “substantially equivalent” standard in 1894, the year the state’s constitutional convention approved its Blaine Amendment. This suggests that it was originally aimed at Catholic rather than Jewish schools. The State Board of Regents eventually got around to the latter, a reality made clear by a 1939 resolution that
private or parochial schools that operate with a program providing a session carried on in a foreign language during the forenoon, with only an afternoon session in English, be advised that such practice violates the compulsory attendance law.
Fortunately, as Schick observes, all “twenty-six yeshivas then in existence banded together to fight the resolution and its implementation, which they viewed as an existential threat to their mission.” They were successful, and today there are “approximately 440 K-12 yeshivas and Jewish day schools across New York State.”
In 1939, many public schools were effectively Protestant schools that included teacher-led prayer and readings from the King James Version of the Bible. Indeed, the same Board of Regents that targeted Haredi schools in 1939 also composed a prayer that could be read by teachers in public schools. The Supreme Court declared this practice to be unconstitutional in Engel v. Vitale (1962). The following year, it held reading ten verses from the Bible without comment in public schools to be similarly unconstitutional.
Jay Ferguson notes this shift in public education in his essay highlighting the fundamental differences between religious and public schools. Religious schools provide an education that proceeds “from a philosophy unique to tenets of the faith.” Jibran Kahn makes a similar point with respect to Islamic schools. Requiring religious schools to provide an education that is “substantially equivalent” to public schools would fundamentally undermine the former.
Michael Donnelly, of the Homeschool Legal Defense Fund, considers the implication of New York’s proposed regulations for homeschoolers, a population that has grown from virtually zero to about four percent of all school children over the past 60 years. Like Charles Glenn, he reminds us that many European countries significantly restrict this approach to education, if they don’t ban it altogether. In America, the practice is regulated by the states, but only two states “have made significant enforcement attempts to require equivalence in home schooling . . . New York and Massachusetts.” He identifies numerous problems with this standard and concludes that it should be abandoned.
Ira Stoll’s conclusion, “Rabbi Nehorai Gets the Last Word,” contains an inspiring paean to Orthodox Jewish education. Like earlier contributors, he rightly reminds readers that moral and spiritual formation are reasonable, and even highly desirable, educational outcomes. He also calls into question claims that New York’s Orthodox Jewish community is more dependent on welfare than other religious groups and, for those in poverty, suggests that there may be other causes. For instance, a 2011 survey of eight counties in New York that included New York City
found 33,900 poor Jewish households that were ‘Russian-speaking senior households.’ Most of these Russian speakers are immigrants. They attended Soviet Communist secular schools that emphasized math, science, and Russian literature, not Torah or Talmud, the teaching of which were outlawed.
Stoll also points out that advocates of stricter regulation of private schools assume that public schools are doing an excellent job. In 2017, New York City spent roughly $25,000 per student per year, and the results were, to put it mildly, less than impressive. And, as Vallier points out in his essay, critics neglect to note that Haredi save the city a great deal of money by forgoing public education.
States have an interest in regulating private schools, most obviously when the physical safety of children is at stake. As well, governments presumably have a compelling interest that would justify intervention if schools routinely graduated students who cannot read, write, or do arithmetic. But there is no good reason to believe that New York has compelling, or even good, reasons to interfere with Haredi schools.
Parents value different approaches to education. Some are content with public schools. My wife and I are firmly committed to Christian and classical education. I have friends who believe children must receive a highly technical education so that they can compete in the modern world. The Haredi are convinced that students should spend a great deal of time studying the Torah. Religious Liberty and Education makes a persuasive case that states should not favor one of these approaches over the others.