Regulating Yeshivas? A Neutral Law Analysis

Michael J. Broyde

We’re not lacking in opinions about the New York State Education Departments’ new regulations concerning private schools and yeshivas. To move to the practical requires some horse-sense about likely outcomes. What would happen if someone would challenge in court the legality of the directives? Handicapping legal battles requires some background. Here is the legal context to the current dispute.

The story starts one hundred years ago, in the aftermath of World War I in 1919 when Nebraska prohibited teaching German to students. In 1923, the Supreme Court in Meyer v. Nebraska, struck this law down. While it allowed the government to regulate many different aspects of the school experience, including insuring a minimal quality of education, it did not think that the States could regulate what additional things parents could teach their children. Parents have a liberty interest in enhancing their children’s education, and not in their children’s lack of education.

The story continued in Oregon when, in a fit of anti-Catholic bigotry, the voters by referendum prohibited all private school education, including any and all private religious education. In 1925, in Pierce v. Society of Sisters, the US Supreme Court declared this law unconstitutional, again because parents have a liberty interest in the education of their children, including the right to provide them with private education, religious or secular, that otherwise meets state standards. The court made is clear in Pierce that the state could reasonably regulate the content of the education, but that parents could send their children to private school which would meet the state standards.

In 1944, in Prince v. Massachusetts, the court allowed a state to enforce its curfew rules against children being out late at night or working. This is true, the court held, even if the children are “working” as part of a church group in ways that their faith demands and parents want. The court used famous language: “The family itself is not beyond regulation in the public interest, as against a claim of religious liberty. And neither the rights of religion nor the rights of parenthood are beyond limitation.” So much for the supposition popular among some in our community that the State cannot emplace any limitation on matters of faith.

The next famous ruling was the 1972 case of Wisconsin v. Yoder. Wisconsin had – like every state still has – a mandatory attendance law for all children in high school until the age of 16. A group of Amish parents sued, arguing that compulsory education past 8th grade was contrary to their faith. To nearly everyone’s surprise at the time, the Court found that the parents’ fundamental right to freedom in raising their children as they see fit outweighed the state’s interest in mandatory education of their children. Parents may, for religious reasons, refuse to educate their children in any school – public or private – but make them work on a farm if their religion so demands.

In short, the path for Jewish schools to avoid the regulations of the State and thus to winning in court runs directly through Yoder if this is a Constitutional question. But the court ends its Yoder decision with the following statement, which may be crucial in determining whether it offers yeshivas any protection. [I added the numbers to aid the reader]:

Aided by a history of three centuries as an identifiable religious sect and a long history as a [1] successful and self-sufficient segment of American society, the Amish in this case have convincingly demonstrated [2] the sincerity of their religious beliefs, [3] the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, and the [4] hazards presented by the State’s enforcement of a statute generally valid as to others. Beyond this, they have carried the even more difficult burden of [5] demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of precisely those overall interests that the State advances in support of its program of compulsory high school education.

In light of this convincing showing, one that probably few other religious groups or sects could make, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.

Here is where things get a bit dicey. In order to invoke Yoder, a faith group must show that their objections are predicated on a (2) sincere religious beliefs that (3) inter-related with their mode of life makes the (4) state’s educational system destructive of their religious faith, while showing (5) the adequacy of their alternative educational system that serves as a reasonable substitute for the State’s compulsory educational system. What is unclear from Yoder, or its few and rare progeny, whether being a (1) successful and self-sufficient segment of American society is also needed or whether this is just a way to help evaluate (5) “the adequacy of their alternative educational system.”

The application to the yeshivas is direct: I suspect that no one would reasonably argue with the application of (2) to the case at hand, and I suspect that the same could be claimed for (3) and (4) as well. The central question that makes the case here harder is the question of whether the communities under discussion can really claim that – like the Amish – they are (1) economically self-sufficient such that their educational system satisfies prong (5) as well.

To determine which side would triumph in court in this Constitutional contest requires an honest analysis of whether any of the affected communities are unusually burdensome to the State, and whether the government could successfully argue that lower (or different) educational standards contribute to that burden.

You know what is coming next. Without prejudice as to the justice or fairness of such a claim, the Orthodox schools that do offer the least (or no) secular studies seem to be vulnerable to such a charge, showing astonishingly high welfare rates. The rates present in these communities, and a comparison of those rates with other communities around it, are not things we hold up to our neighbors with pride – and they just might not positively impress the Court either. (Again, there are counter-arguments. The State might accept the explanation that people in those communities are part of a thriving economy, and lean on public assistance because of unusually large family size or they might show no higher rates than other people living in their (impovished) neighborhoods or they might provide other economic data that we have not yet considered. Then again, the Courts may not be so understanding.)

All this tells us that the case is harder to predict than one thinks, as these communities might not be able to show the same economic success as the Amish. The Court hints at this by wryly noting that the accommodation granted to the Amish is based on an Amish economic model that is “one that probably few other religious groups or sects could make.”

Both sides can marshal reasonable arguments, it is true: the Yeshivas will point to their sincere religious beliefs and the central role of Torah study and the States will point to the economic dependencies in these communities. Yoder is no slam dunk in that case.

The very small number of Chassidic boys’ yeshivas that offer no secular studies at all will have the most difficult time finding refuge in Yoder. (Let me add that from the fact that these institutions provide a satisfactory secular education in their women’s school undermines their argument that it violates their faith, rather than merely their priorities, to provide it. The schools might argue for faith-based differences between boys and girls, but the Court might not buy it.)

My intuition is that a Yoder defense could prevail for those schools that offer some reasonable secular studies, even if it is less than the State minimum mandates, and in communities that are not dens of governmental assistance. However, there is enough doubt to go around for both sides to be careful. For the entire Orthodox community, it would be better if charges of wholesale dependency on government handouts (even if they could be explained) would not become part of the public discussion and certainly not if were detailed in great length in a court brief by the State of New York.

It would be in everyone’s best interest to find a negotiated solution. Prudent parties ought to settle. We have demonstrated that the Yoder platform has some creaky boards when it comes to some of our yeshivas, and that means risk. The stakes may be too high to absorb it.

Rabbi Broyde is a law professor at Emory University School of Law where he teaches Family Law, and a member of its Center for the Study of Law and Religion where he works in Church-State matters.

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25 Responses

  1. Baruch Hashem the welfare numbers do not reflect economic reality.

  2. lacosta says:

    considering that the new town of Palm Tree new york [ kiryas yoel ], is reputed to have the highest welfare rate in the USA , it would certainly be in the interest of hassidic life to settle this case. the worst case scenario would be the outside world realizing that the haredi lifestyle in either hassidic or kollel communities is unimaginable without the Welfare State…. so why did this article even get published?

  3. PQ says:

    This excellent analysis aside, there is a far more pressing issue that even the most favorable court ruling can’t mitigate: Neither the State or US Department of Education will fund schools that don’t comply with educational standards. That means no free/reduced lunch,bus service, E-rate, Books, Special Education etc etc.

    While the legal analysis and issues of freedom of conscience is fascinating, this is really about the pragmatics of millions of dollars of funding.

  4. Steve Brizel says:

    Take a look at the crime rate in inner city neighborhoods especially violent crimes That IMO is what distinguishes Kiryas Yoel from other very low income neighborhoods

  5. D K says:

    “It would be in everyone’s best interest to find a negotiated solution. Prudent parties ought to settle.”
    What do you mean by settle? Please clarify.

  6. Michael Broyde says:

    DK: EXCELLENT QUESTION. I note in the article found here: that a compromise entails:

    First, the state needs to provide heightened financial inducements and assistance to schools to raise their standards of secular education, while treading very carefully in areas of sincere religious objections (like subjects that are immodest in nature).

    Second, parents and schools need to realize they cannot expect to get significant state aid if they do not meet the state’s educational requirement in any reasonable way.

    Third, the state needs to be realistic and recognize that no school system is perfect – not the public school system and not the yeshiva system – and over-regulating yeshivos because a few of them fail to provide even a minimum general education might not be wise when so many public schools have failed their students as well.

    Fourth, courts need to be zealous in making sure state regulations are not simply a masked attempt to abolish all private religious schools, requiring standards that cannot be met and aren’t met by public schools if we are honest about it.

  7. Steve Brizel says:

    If and when the bureaucrats dictate that Heather had two mommies must be taught in yeshivos as part of a diversity curriculum what then is there to discuss as opposed to litigate?

  8. natan thaler says:

    It will be ironic to see the same progressive politicians who advocate for free college, single-payer healthcare, and guaranteed income claim welfare dependence is harmful to the “state”. They are all for expanding the population on the dole when it increases state power, and then turn around and claim it hurts the state when it interferes with the state taking control of private education.

    Or it could be the double standard of claiming racial minorities are “struggling” folks like you and me who need help because they just can’t catch a break, whereas Jews are leeches who drain the incomes of hardworking folks like you and me.

    At the same time, I believe we should have our own higher standard. We need a better justification than, “At least we’re not turning out drug addicts.” And I can’t understand communities that won’t teach their boys geometry and other basic math that is very common in the gemara. But I don’t want the same government that told everyone to load up on carbs dictating educational standards. As an oil executive once said, “Be nice to your worst employee; he’ll probably get a government job and be your regulator.”

    • David Zalkin says:

      Geometry is “very common” in the gemara? Algebra is useful, and there is some trig, but I don’t recall any geometry.

      • natan thaler says:

        For the purposes of this discussion, I consider trig just more advanced geometry. The gemara is full of areas and circumference of circles, dividing fields, measuring a sukka, etc. Try learning maseches Kilayim without high school level geometry. I once had a chavrusa (who actually was studying to be an accountant) who was amazed I knew how to divide a rectangle in half.

      • Bava Basra, Sukka, and Kilayim need geometry. The area of a circle is discussed in a bunch of places.

      • D K says:

        One ex. off the top of my head. In Mesechtas Succah the Gemara is discussing the minimum size of a round Succah which needs to be big enough to fit the bare minimum square Succah inside it.
        Another is regarding a field, how one can plant without prob. of Kilayim.
        Never learned Eiruvin but i’m sure there’s a bunch of Geometry in there…

      • dr. bill says:

        algebra and trigonometry post-dated the times of the talmud. though rambam was not at all familiar with trig in a modern sense, he plotted a sine curve in Mishneh Torah.

        Algebra is an Arabic innovation. not knowing algebra, a number of rabbis misinterpreted the famous ramban in torat ha-adam on the time of plag hamincha. more isolated errors are present as well.

        geometry knowledge was uneven; while certain sugyot do not calculate a 2-dimensional circle accurately, at least one tanna knew how to calculate the contents of a circular 3-dimensional container.

        the lack of commentary on kiddush hachodesh, and errors in logic among the few challenges to rambam that are made demonstrates that general familiarity was not widespread.

        fortunately, in almost all generations klal yisroel was blessed with rabbis well acquainted with then current science, mathematics, logic, philosophy, etc.

  9. Steve Brizel says:

    R Broyde-in a perfect world, your proposals make sense. In the world of realpolitik, bureaucrats in any agency love to expand their agenda with innocuous sounding regulations that mask an ideological agenda. Just look at the recent examples of NLRB, EPA and the IRS, all of which promulgated regulations that masked such agendas. The power of the public education lobby and the teachers unions together with the secular and heterodox Jewish organizations are the primary reason why yeshiva tuition has always been expensive. Again, compare the crime rate for violent crime with that of any Charedi school that has little or no secular education. I think that it can be argued that such schools succeed in reinforcing key moral values that the courts have declared forbidden to be taught in a public school because of the judicially created doctrine of separation of church and state, which Justice Black created in 1948 in the Emerson case, but which one can argue was hardly a universally held view of the Founding Fathers with Jefferson and Adams having very different views and as a result the free exercise clause and the establishment clause both being part of the First Amendment. IMo, given a SCOTUS that has evolved towards a conservative POV and may yet get more conservative, the judicially created doctrine of separation of church and state may be seriously challenged and reevaluated in the future. One thing is for sure-other than determining what is a reasonable search and seizure, only questions involving the Establishment Clause and the almost minimization of the Free Exercise Clause are areas of First Amendment jurisprudence that need revisiting by the Courts and in the halls of academe where there are professors who are openly hostile to legitimate free exercise claims.

    • Thomas Lowinger says:

      The violent crime rate is pretty low in inner cities now days. People live in Harlem and Bushwick and are pretty safe. Violent crime should not be the only type of crime that is relevant.

      • Steve Brizel says:

        I see violent crime as a very important factor-children raised by one gender where the other has committed a violent crime and has no involvement in the parenting process and where the secular education by its definition excludes even mentioning religion or universal Noachide Laws and who view either sports or music as their way out of the inner city are far more likely to commit violent crime than children raised by a father and mother who inculcate such values as part of their lives and education. Show me one mass killing ( excluding the massacre in Chevron and the Rabin Assassination) where the perpetratordid not have an underlying mental disorder had any sense of religious values and there was proof that the perpetrator’s PC was loaded with inappropriate content

  10. Steve Brizel says:

    In Yoder, the Supreme Court set forth the following as the objection raised by the Amish communities:

    “Amish objection to formal education beyond the eighth grade is firmly grounded in these central religious concepts. They object to the high school, and higher education generally, because the values they teach 211*211 are in marked variance with Amish values and the Amish way of life; they view secondary school education as an impermissible exposure of their children to a “worldly” influence in conflict with their beliefs. The high school tends to emphasize intellectual and scientific accomplishments, self-distinction, competitiveness, worldly success, and social life with other students. Amish society emphasizes informal learning-through-doing; a life of “goodness,” rather than a life of intellect; wisdom, rather than technical knowledge; community welfare, rather than competition; and separation from, rather than integration with, contemporary worldly society.”

    How different is that from a Charedi school with little or no secular studies?

    The Supreme Court also noted:

    “he record shows that the respondents’ religious beliefs and attitude toward life, family, and home have remained constant—perhaps some would say static—in a period of unparalleled progress in human knowledge generally and great changes in education.[7] The respondents 217*217 freely concede, and indeed assert as an article of faith, that their religious beliefs and what we would today call “life style” have not altered in fundamentals for centuries. Their way of life in a church-oriented community, separated from the outside world and “worldly” influences, their attachment to nature and the soil, is a way inherently simple and uncomplicated, albeit difficult to preserve against the pressure to conform. Their rejection of telephones, automobiles, radios, and television, their mode of dress, of speech, their habits of manual work do indeed set them apart from much of contemporary society; these customs are both symbolic and practical.”

    Again-how in any way different than a Charedi school that provides little or no secular education?

    The bottom line of the SCOTUS was :

    “The conclusion is inescapable that secondary schooling, by exposing Amish children to worldly influences in terms of attitudes, goals, and values contrary to beliefs, and by substantially interfering with the religious development of the Amish child and his integration into the way of life of the Amish faith community at the crucial adolescent stage of development, contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child.”

    Why then would not a Yoder based claimprevail if asserted by a Charedi community that offered little if no secular education especially in light of the following language in Yoder:

    “A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. …There can be no assumption that today’s majority is 224*224 “right” and the Amish and others like them are “wrong.” A way of life that is odd or even erratic but interferes with no rights or interests of others is not to be condemned because it is different.”

    In an ideal world, perhaps R Broyde’s ideas and fourfold test might work-in the world of realpolitik bureaucrats are paid to regulate more not less and to devise innocuous regulations that mask objectionable agendas. The recent examples of the IRS, NLRB and EPA all are too obvious in this regard. I cannot imagine those who have been hostile to the cost factor of yeshiva tuition doing a political somersault and now helping yeshivos or the public education lobby coming to the same . Perhaps that is why a maximal not a minimal defense of Yoder on free exercise grounds especially witha SCOTUS that is becoming more conservative strikes this reader as eminently applicable in the case of Charedi communities that offer little or no secular education

  11. Michael Broyde says:

    I am responding to Steven Brizel’s comment. Yoder is directly on point and your quotes are correct. But, the Court is deeply aware of the undergirded economic issues and the Supreme Court goes out of its way to limit the Amish exemption to those communities that are economically self-sufficient. The Court states that directly a few times including in the final summary of the case. The reason is logical as well from a secular neutral perspective: people do not have the right to exempt themselves from governmental requirements of education and then seek welfare benefits for those who are not educated. This is even more so true in a case like this where the central issue is governmental support of these schools. The governmental interest here is economic when it impacts religious freedom issues.

  12. Steven Brizel says:

    R Broyde thank you for your well considered article and response. I see the free exercise concern as being more important and valued by the Court than economic self sufficiency, and stand by my view that any claim by such a Charedi school or community would be completely within the protection and meaning of Yoder which I believe a more conservative court would and should view as a paramount constitutional value

  13. Michal S. says:

    I’m a little confused by your assessment, Rabbi Broyde — this assumes that the hours spent on religious education are educationally equivalent to the hours spent by Amish teens working on farms. However, Dr. Adina Schick of NYU has demonstrated how limudei kodesh itself teaches critical thinking, reading comprehension, etc in accordance with Common Core standards, point by point according to Common Core documentation. How does that figure into your analysis?

  14. Michael Broyde says:

    I respond again to Steven Brizel’s comment: My purpose in writing this piece is not to argue what the court “should” do, but to try and read the tea leaves about what the Courts “will” do. A consistent read of the many different Federal Courts of Appeals decisions that discuss Yoder do focus on the economic self-sufficiency of the Amish community and the deep rarity of granting Yoder petitions. Particularly in a case like this, the idea that schools are both entitled to government aid as schools, while seeking religious exemptions from regulations that mandate what they teach — while simultaneously seeking governmental assistance for their graduates– is a complex argument that very well could lose. Do not confuse what we want from what we will get.

  15. Steve Brizel says:

    R Broyde if the circuits have unduly narrowed the scope and meaning of a Supreme Court decision we see that the SCOTUS does remind the circuits from time to time of what they held and meant as a means of reinforcing their opinion as stare decisis. I don’t think that the secular Jewish defense agencies who in no small part are responsible for huge tuition bills will come to the rescue of our communities and IMO it is wishful thinking to say so

  16. Steve Brizel says:

    Imagine if the wife of the Vice Presidents taught anywhere where Torah and Torah values about the family are inculcated and expected to be normative behavior. I can easily imagine the progressive choir condemning the same as supporting RL reactionary values. This is what we are faced with in the US today

  17. Michael Broyde says:

    I am responding to Michal S. This is a “could be” kind of argument that will vary from school to school in details and application. The idea that a school that provides no secular studies and teaches in Yiddish or Hebrew will be able to show “educational equivalence” strikes me as a hard argument, as the students do not speak English well, or show basic math literacy or common science familiarity. This is different from the idea that the yeshiva teaches a basic standard Regents curriculum will be able to show that yeshiva learning adds something of value that the state should consider in addition. So, the answer is, I think, “maybe.” and “case by case this is possible,” but I doubt that this is a systemic solution to the basic problem.

  18. Moshe G says:

    Sorry for being late to comment.
    With regards to the self sufficient argument, there seems to be zero evidence that graduates of yeshivas with no or little secular studies earn less on average than public school grads. The only cited statistic that I’m aware of is that of Kiryas Joel having the highest welfare rates in the USA. However this is not evidence at all and it’s a shame that even frum yidden seem to have bought this. The reasons why this stat isn’t meaningful are as follows-
    1. Kiryas Joel also has the youngest population in the USA by a significant margin, since young people across the board earn less then older people (and are therefore more likley to depend on welfare) this alone might be explain high welfare rates without showing that these same people earn less on average then others. In fact this single stat is why anyone would PREDICT that KJ would be highest in welfare even without knowing anything about their schooling.
    2. Since poverty rates are determined by family size but income isn’t, there’s again no reason to see a connection to average income with regards to KJ. Obviously family sizes in KJ are way bigger then in society at large.
    3. KJ is somewhat self segregated in terms of income. Graduates of Satmar who earn less money are more likley to relocate to KJ from Brooklyn and vis versa. This means that in determining the success of yeshivas (as regards income) by looking at KJ is wrong, as it’s as if one looked only at the bottom half of any school to determine how well that school does.
    There are several more reasons but the ones above are the big ones. Any one of the reasons above might be sufficient to explain the high rates of welfare let alone all three. Certainly the only true way to determine the income of yeshiva grads would be to look at all grads no matter where they live and then study their incomes based on their ages. To my knowledge that’s never been done. As such any assertions to yeshivas lack of success are in today’s parlance “fake news”.
    A final word, what I’ve tried to show is that average income of yeshiva students might certainly be equal or greater then average. A critic however might argue that while income is the same, there is still no self sufficiency as a community do to factors like large family sizes and young population. However here to that’s off the mark, firstly because these factors have nothing to due with the heart of the argument which is secular studies. And secondly even with regards to welfare there is still no evidence that Chassidim aren’t self sufficient, once you take into account all taxes paid versas what is received from government (with a very large factor being full property taxes while not receiving back funding for schools).

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