Emmanuel Sidebar

The below, by Rabbi Chaim Dovid Zwiebel, Agudath Israel of America’s executive vice president, appears in Hamodia as a sidebar to a larger report on the Emmanuel school situation

In 1922, Oregon voters passed an initiative amending the state’s law to require all schoolchildren to attend public school, in effect, disallowing private schools, including religious ones (in Oregon, primarily Catholic). Two lawsuits were filed, one by a religious school. That case, known as Pierce v. Society of Sisters, was decided in the school’s favor by a panel of the Oregon District Court. The decision was appealed to the United States Supreme Court, which handed down its ruling on June 1, 1925.

The Supreme Court unanimously upheld the lower court’s decision and thus enshrined in federal law the right of parents to choose the school setting most appropriate for their children.

The language of the Supreme Court ruling is clear, pointed and remarkably relevant to the situation facing the parents of Emmanuel.

“[W]e think it entirely plain…,” the Court declared, “that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.”

“As often heretofore pointed out,” it continues, “rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the state. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only.”

And then the decision distills the essence of the matter: “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Israel’s Supreme Court did not hesitate to invoke Brown v. Board of Education and other U.S. Supreme Court rulings in its decisions about the Emmanuel school and parents, trying to draw a misleading parallel between haredim and racists of the 1950s. Unfortunately, though, the honorable Israeli justices neglected to cite the U.S. Supreme Court case most directly on point – the one that clearly establishes the fundamental right of parents to select the school where their children will be educated.

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21 Responses

  1. Gil Student says:

    Let’s conduct a thought experiment. Imagine an inner city school that only accepts students who speak in English at home. Would that be covered by Pierce v. Society of Sisters or would it be considered racist because it is obviously intended to exclude immigrants?

    One of the requirements of the school in Emanuel was that all students pray — even at home — with Ashkenazic pronunciation.

  2. Tal S. Benschar says:

    Answer to Gil Student: In your “thought experiment” the case would indeed be covered by Pierce. The parents retain the right to send their students where they wish. The Court might have the power to order the school to integrate, but the parents do not have to send their childrent to that school.

    As I have written repeatedly, in the 50s and 60s integration cases (which, let us recall, dealt with genuine racism), no American court ever ordered parents to send their children to a particular public school. The school might have been ordered integrated, but the parents retained the right to educate their children as they wished.

  3. Simcha Younger says:

    It is obvious from the way the judges extensively quoted the entirely unrelated Brown vs. Board of Education that they were looking to share in th ehistoric glory of that decision. So what would be the pointof quoting a decisions no one (outside the legal profession) ever heard of? No going down in history for that!

    Gil. I have no reason to accept your assumed conclusion in your thought experiment. Also, the requirement at home was dropped early on, well before the Bagatz got involved. The demand for Ashkenazic pronounciation only means that they wanted to have an Ashkenazic school, and does not constitute discrimination, and is completely legal, even according to the Bagatz (see the emanuel decision.)

  4. Steve Brizel says:

    I think that any religiously based community has the right to teach its students by the means and the curricula its leadership deems appropriate. The issue raised by R Gil unfortunately conflates the issue to whether such a school must accept all applicants merely because of a contemporary definition of education, as opposed to how a religiously based community defines education for its adherents.

  5. Gil Student says:

    Tal: Thank you. Your point is that, yes, there was discrimination and the school should have been ordered to integrate. However, the court had no right to order the parents to send their daughters to that school. That is also how I understand the situation.

    Simcha: “The demand for Ashkenazic pronounciation only means that they wanted to have an Ashkenazic school”

    Precisely the point!

    Steve: The issue is whether the rules were intended for educational reasons or discriminatory reasons. I find it hard to believe that they were anything but discriminatory.

  6. Doron Beckerman says:

    I find it hard to believe that they were anything but discriminatory.

    Because for you, exposure to other methods of pronunciation within the social framework of an educational institution is not a matter of principle. Based on the rigorous exclusivity, and absence of acceptance of diversity of practice, that is part and parcel of Chassidic education (something I don’t agree with), I’m not so sure.

    There’s no question that the Chassidic track was meant to maintain a Chassidic flavor, which would be hard to do, upon accepting a very large percentage of non-Chassidic girls, without imposition of (typically Chassidic) very rigorous exclusivity and absence of diversity, even in something so seemingly trivial (to you) as pronunciation in the home, which could have social implications.

    That said, I have no doubt that severe, abhorrent discrimination exists in the Ashkenazi Charedi world. I’m just not sure that the Slonimers are the correct address, and presuming that, since prejudice does exist amongst Ashkenazim, that that was what motivated the Slonimers, is the very definition of prejudice.

    Certainly, the Supreme Court’s actions in this matter were outrageous.

    And that said, Sephardi Charedim often don’t want to go Sephardic institutions because of the diversity of their clientelle vis-a-vis Baalei Teshuvah and Bnei Torah intermingling. They don’t their kids exposed to the Sephardic BTs, and thus their own desire for separation leads them to look to Ashkenazi institutions for acceptance.

  7. Steve Brizel says:

    R Gil-I think that usage of Ashkenazic Hebrew for learning and davening is one of the great examples of the divisions between the Charedim , Sefardim and RZ and is viewed as a means of inculcating identification with the Charedi world and its values, etc. In that sense, it definitely strikes me as an educational tool.

  8. Tal S. Benschar says:

    Gil: Not quite. My point is that EVEN if you find discrimination, there is a limit to what a court can or should do. The Supreme Court crossed that line.

    As for whether there is discrimination, I do not have first hand knowledge of what went on in Emmanuel. But let’s be plain. This is nothing like Brown v. Bd. of Education. The blacks in America were treated like dirt because of their skin color — regardless of how they behaved or acted. The notion that they could have been accepted into a school (or other benefit like a job or eating in a restaurant) simply by “acting white” is utterly absurd and ahistorical.

    I do not completely share your surmise that the standards were a cover for racism. Chassidim are very attached to their customs and ways of life, far more than the Litvaks are, let alone the Modern Orthodox. For example, many insist on instruction in Yiddish, which in my view for most children outside Williamsburg would be counter-productive.

    This school was the “Beis Yaakov Chassidi” — a Chassidish school. Surprise, suprise, they expected their students to behave like Chassidim. That includes not only Sephardim, but also Litvaks and Yekkes, if there are any such in Emmanuel. Would a Litvak or Yekke be allowed to send his daughtter to that school (which no doubt davens Nusach Sefarad) while insisting she daven Nusah Ashkenaz?
    I rather doubt it.

    Apparently there were a number of Sefardim who did comply with these requirements and whose daughters were accepted to the school. Some of these Sefardi parents are now sitting in jail. Maybe they are traitors to their Sefardi heritage, or maybe they know something you do not know. But whatever is going on there, racial discrimination it isn’t.

    (BTW, the word “discrimination” is always thrown around as though it is a bad thing. There are many forms of discrimination, some of which are good. Medical boards require graduation from an accredited medical school before they give you a license to practice medicine. That is “discrimination” against those who never went to medical school, but it is not bad.

    It is only racial/ethnic discrimination, and some other types barred by law, which are bad.)

  9. Eytan Kobre says:

    Perhaps I’m late to the game here and am merely echoing earlier comments, but:

    1) Gil’s thought experiment bears no connection to the Emmanuel school’s requirement. Requiring immigrant children to converse at home with their parents in English is an impossible demand, and as such, a transparent cover for exclusion. What has that to do with requiring a child to daven at home with Ashkenazic pronunciation, which is eminently doable and can have a valid pedagogical basis? The fact that numerous Sephardic families accepted that requirement is evidence that it need not be, and therefore ought not be assumed to have been intended as, a barrier to Sephardic enrollment. Which leads into my second point, which is . . .

    2) Why, Gil, the gratuitous ill will? Reasonable observers of the Israeli scene, including all commenters on this site, acknowledge significant Ashkenazi discrimination against Sephardim. But that is a generality; this case involves a particular group of Jews in a particular community, where, I assume you have no pre-existing knowledge that bias exists, and where there is prima facie evidence in the form of numerous Sephardic families, that bias was not a factor. At best, the matter is greatly in doubt and not readily ascertainable.

    Why, then, must you find it “hard to believe that [the school’s rules] were anything but discriminatory”? Need it really be so “hard”? Does not simple decency, good will towards other Torah Jews and, perhaps, even the dictates of Halacha, argue in favor of giving this particular group of Jews the benefit of your doubt?

  10. Ori says:

    Steve Brizel: I think that any religiously based community has the right to teach its students by the means and the curricula its leadership deems appropriate.

    Ori: Sounds good in principle, but don’t forget the Hamas is also a religiously based community. I’m pretty sure you’d like some additional restrictions.

  11. Jacob T says:

    For the third time, I would like to attempt to reach back to the ostensible purpose of this post–the fact that the Israeli high court cited Brown while overlooking Pierce. It seems to me that many in discussing this situation have overlooked a key consideration, one that sets the Emanuel School apart from say, a U.S. parochial school: it is funded by Israeli taxpayers, through the machinery of the Israeli state. While the Israeli system is much more flexible than the U.S. system in allowing for state-sponsored religious instruction (and, therefore, local control over education) it seems that some component of the walled-off Slonimer sub-school was a step too far for the Israeli legal system. My question then, is that rather than questioning the legitimacy of the State to come to such a legal decision, would it not make more sense for the Slonimer community to privately fund its own school?

    As a broader question, please forgive my ignorance (and I mean no disrespect), but on what Halakhic and/or rational grounds do Chassidic courts that reject the legitimacy of the State of Israel justify accepting State funding? Not looking to argue here, just understand.

  12. Dov says:

    Rav Zwiebel’s letter is a very good one, but it does not address the bottom line in Emanuel as the story has become clear.

    First, the phrase “legislation which has no reasonable relation to some purpose within the competency of the state” does not apply to policy decisions by Chinuch Atzma’i themselves against having two schools. In fact, “some purpose within the competency of the state” clearly permits core curriculums, budgetary decisions, and a lot more. The fact that the Emanuel case includes a decision by Chinuch Atzma’i themselves against having two schools makes it clear that there are many legit “purposes” to the legal decisions involved.

    Second, in the States the decision was between public and private schools. In Israel the government funds Chinuch Atzma’i schools, and thus has more of a say.

  13. Bruce says:

    I find the citation of Pierce to be quite interesting here. Certainly the result makes sense from a social and political point of view — few people think that private and parochial schools should be illegal.

    But the constitution contains no explicit right to determine how to raise children. In Pierce, the US Supreme Court relied on the liberty interest in the 14th Amendment’s Due Process Clause, also known as “substantive due process”. Simply put, under this doctrine, the states cannot interfere with an individual’s “fundamental rights” without a really good reason. In Pierce, the court held that the right to determine the schooling of one’s children was such a right and the state had not shown a sufficiently good interest in restricting it. A similar case (Meyer v. Nebraska) held that prohibiting foreign-language instruction — in that case, German — also violated substantive due process.

    I personally have no problem with this idea (although I would ground it in the Privileges or Immunities Clause), but the open-endedness of the doctrine has led to some results that people like and others that people do not like. I think readers of this blog would oppose many of these results.

    For example, the liberty interest of Due Process Clause has been held to encompass the right to bodily privacy and autonomy and thus protects from state punishment the use of contraceptives (Griswald, Eisenstadt), the right to abortion (Roe), and the right to engage in sexual activity, including homosexual sodomy (Lawrence). Over 100 years ago, it was used to protect certain economic rights (and thus regulations restricting these rights were held unconstitutional) but the US Supreme Court reversed itself during the New Deal and permitted such regulations.

    If Israel adopted any sort of substantive due process protection for individuals, it certainly would protect certain core individual rights from the state sponsored religious control. For example, it is hard to see how the state can prohibit two Israeli Jews from being married by a Masorti or Reform rabbi consistent with their liberty interests.

    I certainly agree that the order requiring parents to send their children to this school is problematic on many grounds. But Avi, are you really suggesting that Israel should follow Pierce and adopt an open-ended notion like substantive due process to protect individual liberties on what courts determine to be “fundamental rights”?

  14. Tal S. Benschar says:

    It seems to me that many in discussing this situation have overlooked a key consideration, one that sets the Emanuel School apart from say, a U.S. parochial school: it is funded by Israeli taxpayers, through the machinery of the Israeli state.

    What this comment overlooks is that the Court ordered the parents to send their children to this particular school. They were forbidden, on penalty of contempt and jail, from sending them to any other option — including a privately funded school.

    That is the part of the decision which provoked most of the outrage, and Pierce is definitely applicable to that.

  15. rachel w says:

    Dov-the parents who were sent to jail were told by the court which school they must send their girls. They transferred them to a school in Bnei Brak and also tried home-schooling them (in essence abandoning the original Bais Yaakov Chassidi school). The court refused to allow those two options.

  16. koillel nick says:

    “What this comment overlooks is that the Court ordered the parents to send their children to this particular school.”
    not true. the court insisted that the children go to a legally registered school. furthermore, the court did not push themselves into the issue, they postponed their enforcing of the decision for 10 months giving options for compromise.
    emanuel is a small settlement. the govt recognizes publicly funded charedi schools. it does not recognize trends within. the school is not hassidi if a large percentage of the parent body are not. the slonimer chassidim refused to compromize whearas the rules of the school would be set by the chinuch atzmai charter. the court decided that the stringent rules were made in a way that sephardic girls would be excluded. the 2 sides of this issue have not been explained well in the charedi american press as there are no rebel sites such as kikar hashabat.

  17. Tal S. Benschar says:

    “What this comment overlooks is that the Court ordered the parents to send their children to this particular school.”
    not true. the court insisted that the children go to a legally registered school.

    How is this not true? Is it not true that the parents tried to bus the chidlren to Bnei Brak? Or to set up a separate privately funded school? And were told either would lead to contempt and jail?

  18. koillel nick says:

    sorry tal
    1. as in all public schools in israel, you can’t send your kid to a public school outside your municipality. for example, you can’t live in har nof and send your kid to a bais yakov in givat shaul. they didn’t try to enroll their kids in a private school. and it wasn’t the court who refused to allow it, rather it has to do with finances. bnei brak municipality money can’t be used for people who don’t live there.
    2. the ministry of ed wouldn’t give a permit to have a private school in May. they were willing to give them one starting next academic year.
    3. slonim would have had a permit to have one in september, had they compromised and accommodated the ruling for 2 weeks. that was a compromise set up by aryeh deri. they refused and now it is highly unlikely that the ministry of ed will give them one (as per the minister of educations last press conference).
    on a side note, lets remember. lets remember that chinuch atzmai is a govt sanctioned public school. the govt recognizes them as chareidi, but does not recognize trends within. there are no chasidic, sephardic, ashkenazic.as far as they are concerned, if a large part of the parent body are not chassidim then it isn’t a bais yakov chassidi. therefore issues of pronunciation would be viewed as one group forcing another. same goes for views on tznius that are not accepted by all chareidim. enforcing Rav Vozner’s view wouldn’t work. a school with a diverse parent body would have to accommodate different rabbis. any sort of percentage of who will be accepted racism as it should be for all chareidim. now in a city with a lot of families, like jerusalem or bnei brak, it is highly unlikely that these parents with so diverse a view would want to be in the same school. thus you see bais yakov chassidi and no one cares to make an issue. but emanuel is a settlement, and there is only 1 school.

  19. as says:

    “Because for you, exposure to other methods of pronunciation within the social framework of an educational institution is not a matter of principle.”

    I don’t understand how it can be a matter of principle what havara one’s friends use – especially if the teachers are using the havara used in slonim (which I understand that they are)…If there’s a principle at stake, isn’t it that everyone retain the havara of their home? I speak the way my parents do, even though I went to schools where other kids used other pronunciations and I just don’t see how other kids’ pronunciation can be an issue (In fact, at my school, the teachers used different havara than I do and I retained the havara of my parents for davening and learning on my own. However, I can see that one might be influenced by teachers’ havara. I don’t see how it matters what havara a friend uses, except as stated, that it perhaps is perferable for everyone to retain their family’s pronunciation). How is it different than family minhagim or ashkenazic/sefardi minhagim. For example, does it affect the kids of ashekanzim who don’t eat kiniyos on pesach that their sefardi friends from school do eat kitniyos at home? HOW??? Surely proper education is that as a rule one follows ashkenazi custom if ashkenazic and sefardi custom if sefardic and so on….I just don’t grasp the idea. Would the Slonimer Rebbe tell a sefardi to change his havara or minhagim – I very much doubt it – so why is it a problem if they retain their havara and minhagim in schools?

  20. Tal Benschar says:

    Koillel Nick:

    Sorry, what you are describing is a bureaucratic end-run around the parents’ rights. They can send their kids to another school, in theory, but in practice all other options are outlawed. I am not at all impressed. That simply would not be tolerated in the U.S. under the Pierce case and its progeny, and is a gross interference in parental rights.

    If no compromise could be find at the school, then the parents should be given permission to home school their daughters, or they should be allowed to attend a school elsewhere (perhaps paying for bussing out of their own pockets), at least until a private school can be set up for the following year.

    The bottom line remains: the Court ordered them, on pain of contempt, to send their daughters to that school. All other options were foreclosed. That is why the fathers are sitting jail today.

  21. L. Oberstein says:

    If only Rabbi Zweibel and his team were in charge in Israel, things would be a lot different.At one time the Democratic Party in Alabama had as its official motto “White Supremacy for the Right”. This is no exageration, I saw it myself. At the same time there was a Democratic Party in other states that had a different view. The wide gulf between the mentality of the American Agudah -professional,level headed, able to deal with intelligence and create channels to other groups, and those in Israel but see the world through different lenses is immense. The biography of Rabbi Sherer says that the shenanegans in Eretz Yisroel gave him agmas nefesh. I am sure that Rabbi Zweibel could have solved the Emanuel situation long before it led to what happened. The whole way of dealing with conflict in Israel is awful. In the US, we don’t close down hospitals, airports, cease government services at the drop of a hat. The chareidim seem to have learned from the Socialists how to make their greivances noticed. At present, with the “compromise” who really won?

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