Religious Schools Find a Way Forward During the Pandemic—by Coming Together

It could almost be the start of a joke: A lawyer and the heads of three Orthodox yeshivas and two Christian schools walk up to a bar ….

But this summer, when an unusual team united to fight an injunction against a school closure in California, the concerns were no laughing matter—and their success in court, especially where others have been failing, is giving observers something to study.

On the opposite coast, for example, Agudath Israel of America and the Diocese of Brooklyn issued separate filings requesting temporary restraining orders and preliminary injunctions to keep shuls, synagogues, churches, and religious schools open—only to see federal courts deny all of them.

Despite the hard-won Supreme Court victory Agudath Israel and the Diocese of Brooklyn experienced last week, an approach similar to the one seen in California could have avoided the high drama of a late-night SCOTUS decision altogether.

In Yavneh Academy v. Gavin Newsom, the united group’s opening brief explains that “community and gathering together are essential elements of the Catholic, Christian, and Jewish faiths”—thereby banding together to make a broader argument that apparently was harder to ignore or beat back. Ultimately, the plaintiff briefs filed in Yavneh Academy v. Gavin Newsom served as a religious literacy primer for a secularized age, paving the way for this kind of nontheological ecumenism to become a major aspect of religious liberty cases where the state claims a compelling interest to impact a specific group’s constitutional rights.

Earlier this year, Yavneh Hebrew Academy in Los Angeles was preparing for the worst. Since July 6, Yavneh had operated as a summer camp, following state and county guidelines allowing children and young people to congregate for extracurricular activities. It was successful—the children enjoyed a relatively normal summer that allowed them to interact and play as kids do, all while abiding by the state and county protocols. So crucial to their students’ well-being did Yavneh believe this social interaction, that they offered this summer experience free of charge.

On campus, there were zero confirmed cases of COVID-19.

But no one knew what to expect come September. Desperate to keep their schools open and protect their students’ mental, emotional, physical, and spiritual well-being, administrators and school boards employed a kitchen sink approach to protect themselves from a potential closure requiring remote learning.

“During those weeks, we were first and foremost trying to figure out the best way to safeguard the health and well-being of our school community,” recalled Yavneh school board president Isser Elishis. “To me, that meant trying to find a way to keep Yavneh’s building open that was both safe and within the bounds of the law. So we explored just about everything. We started by figuring out what exactly the state’s new school closure order actually prohibited. And then we tried to determine whether the state or county was going to grant waivers to the school closure order, what kind of legal recourse we might have in the event we couldn’t secure a waiver and—ultimately the winning solution—whether the state and county would allow us to continue operating our educational camp in accordance with the prevailing health guidelines.”

Yavneh knew they had built a model that was safe. They were running it as a camp per the state and county’s guidelines, complete with daily health screenings, limited access to campus from noncampers, and restricting students to pods.

However, Los Angeles County had strict school regulations, using the state’s school closure order as justification. They could replace Yavneh’s system with a more limiting model that all but eradicated in-person religious formation.

The school determined to request that the state lift its school closure order for religious schools on First and 14th Amendment grounds, partnering with law firm Sidley Austin, which had a proven track record representing religious organizations.

The Sidley Austin legal team was led by Gordon Todd, himself a Roman Catholic. “This isn’t a Jewish or Catholic or Christian thing,” he asserted. “It’s a religious freedom thing.”

Yavneh sought out allies by cold-calling various Jewish schools in Los Angeles with which they were familiar. Meanwhile, schools representing other faiths had approached Sidley about the school closure order. The affinity between Yavneh’s principles and those of the two Christian schools in the suit made consolidating their interests a fairly organic process.

On Aug. 17, the multifaith confederacy filed a complaint for declaratory and injunctive relief with the U.S. District Court, Central District of California. The brief cited compelling firsthand accounts from parents on the effects of the school closures on their children.

One parent described her child losing 15 pounds from stress and depression caused by not being able to attend St. Joseph in person. A teacher recalls learning of a borderline suicidal 10-year-old student. Another parent recounts the financial damages placed upon them by continuing to pay tuition for a type of education their child is not receiving.

The complaint brief was a work of patient apologetics. “For Jewish schools,” the brief informed the state, “the communal study of the Torah is itself a form of worship. Depriving students of this ability and forcing such study online creates a unique form of religious injury.” It laid out how Roman Catholicism places particular value on physical, incarnational effects.

Shortly thereafter, apparently considering it a clarification of the confusion created by Los Angeles County’s school closure guidance, California’s Department of Public Health issued its “Cohorting Guidance.” The guidance allowed schools to operate at 25% capacity, while leaving room for counties to further amend the restriction. Los Angeles County limited theirs to 10%.

The Yavneh plaintiffs’original problem remained, since under the guidance, broader lateral permission was extended to camps while limiting children’s physical attendance at schools.

California’s opposition brief, filed on Sept. 11, demonstrates two groups talking past each other. The state insisted its school closure order was neutral, applying to public as well as private schools. Therefore, by definition, it couldn’t be in violation of religious schools’ First Amendment rights.

Moreover, the state allowed in-person worship at that time, under specific conditions, usually outdoors. Couldn’t the schools simply do the religious education part with the students physically present following those guidelines, the state asked, then do the (presumably) secular coursework remotely?

Yavneh and its co-litigants realized it was back to the drawing board.

In their Sept. 18 reply brief, the schools maintained that government must recognize in-person instruction as crucial to their religious character. Across denominations, religious instruction pervaded and infused all five schools’ educational environments. Their original complaint cited numerous examples of instructors organically incorporating faith and object lessons into ostensibly secular subjects like math and science. Almost by definition, religious schools could not sever religious instruction from academics without wholly self-destructing.

For Judaism, in particular, the schools argued the closure order approached an existential threat. Unable to form a minyan, for example, the next generation would be unable to learn certain prayers.

The schools pointedly highlighted that they were not at all cavalier about the effects of COVID-19. “There is much,” the reply brief begins, “on which Plaintiffs and Defendants agree,” before discoursing on the seriousness of the pandemic and the importance of preserving the health and safety of the public during the ongoing crisis.

This recognition of common ground marked a shift in the character of the suit, which took a course no one could have predicted. Ultimately, the state also saw that there were many points of agreement with the schools.

On Oct. 26, the two sides filed a joint motion to dismiss the suit. Private schools could use the Aug. 24 Cohort Guidance (updated on Sept. 4) for in-person education. “For avoidance of doubt,” the motion went out of its way to say, the guidance did not impose a percentage or numerical cap on the number of students who may be on a religious school campus at any given time, “so long as a religious school meets all of the requirements in the Cohort Guidance.” Student bodies could congregate outdoors for socially distanced Judaic studies, religious education, and prayers.

For all intents and purposes, it appeared as though justice and peace had kissed.

“It’s ironic that it happened through litigation,” said Professor Michael Helfand. “It’s almost as if we were having a conversation while drafting briefs. We said what our issue was. The state gave us options.”

As of this writing, pre-K through eighth grade students at Yavneh Hebrew Academy are still following the camp model, and exploring their options going forward in light of the court’s order. At the upper grade levels, high school students at LA’s Shalhevet High School are conducting Judaic studies outdoors, with open-walled tents on the roof and in the parking lot.

Throughout, the health and safety of everyone remains paramount.

“We’re obsessive about our safety protocols and our PPE,” said Rabbi Shlomo Einhorn, rav and dean for Yavneh. “A kid’s got a sniffle, we send them home.”

The California model of nontheological ecumenism may be more than a feel-good story. It may indicate an effective way forward on religious liberty cases where institutional interests and infrastructure align.

Earnestly held religious beliefs often translate into shared values, because religious groups and institutions understand the worries of other faith communities. Helfand maintains a common framework of respect and understanding facilitates strong collaborative interfaith relationships when it comes to confronting challenges to the practice of faith. In situations where distinct religious groups lend their voices to a chorus of believers, the very act of their working in concert amplifies the stakes.

“A lot of religious liberty concerns have to do with regulation of a unique practice,” explained Helfand. “We’ll see cases where people are litigating their own case and others will support with amicus briefs.”

In his estimation, Yavneh “is the way of the future. Faith communities can help explain to the state that we have shared values. We were able to describe in a court order what religious instruction was and why it’s important.”

Luke Hietschel, Headmaster of St. Joseph Academy, agrees. “In a different context, I would love for ecumenism to look more like the corporal works of mercy [the Catholic doctrine of meeting the physical needs of all people in need], or even friendly and charitable debate between our different faiths,” he said. “However, in the present climate, we must boldly join together to preserve our freedoms before they disappear.”

Echoing Helfand, who believes the Yavneh cooperation demonstrates “the best of what American religion can be,” Hietschel asserted, “This kind of ecumenism is important for our republic.”

“Religious liberty is absolutely essential,” he said. “This is why our Founding Fathers set up such strong protections for it in the First Amendment to the Constitution. If the various faiths (especially believers in Judaism and Christianity) do not work together to protect our common freedom, then we will wake up one day having had it erode over time.”

In a country obsessed with narratives, this case deflates some common ones on both sides of the religious liberty dialogue.

On the one hand, there is a perception among some secular Americans that religious groups favor belief over science. The schools’ informed, good-faith efforts to protect against COVID-19 and abide by state and county guidelines—often at great expense and care—belie that narrative. Plexiglass desk shields, an abundance of alcohol wipes and disinfectant sprays, and cleaning protocols indicate a diligent sobriety with regard to the pandemic.

Conversely, religious communities can view government as a sort of secular panopticon, scouring the landscape for beliefs and practices to harass. In the case of Yavneh, conversations on background and the outcome of the lawsuit itself suggest that the restrictions were a simple case of genuine misunderstanding and a good faith effort on the part of the state to protect their population.

The state’s lack of cultural competency surrounding religious issues was evident in an illustrative way during Yavneh: Oral arguments were scheduled to take place on Yom Kippur. While the state was ready to reschedule, doing so would have delayed the suit further. The oral arguments went ahead as planned.

“Listen,” Helfand remembered thinking, “Yom Kippur is the Jewish Day of Judgment. On a certain level there’s something oddly appropriate—also ironic—about this.”

Good-faith dialogue and tolerant exegesis on the part of the religious schools ultimately won the day and created a compromise that satisfied all parties.

This attitude is in stark contrast to the events in New York where the Diocese of Brooklyn and a coalition led by Agudath Israel of America each requested a temporary restraining order and preliminary injunction allowing shuls, synagogues, churches, and schools to remain open in areas deemed “red” under New York Gov. Andrew Cuomo’s Executive Order 202.68.

Both motions were ultimately denied in a 2-1 decision by the judges’ panel on Nov. 9. Although the Second Circuit Court panel reviewed the Agudath Israel and Diocese of Brooklyn cases together, the groups filed their suits separately.

Despite the similarity of the New York groups’ complaints to the Yavneh complaint—a closure order related to the pandemic is not neutral with regard to outcome for religious groups—the former efforts failed and the latter effort resulted in a settlement with the state.

In contrast with their co-religionists at St. Joseph Academy—who made common cause with other faith groups who shared their commitment to safely opening their institutions—the Diocese of Brooklyn seemed at pains in their press statements to differentiate themselves from the Orthodox community, albeit obliquely. Like the Pharisee in the New Testament parable who thanks God for the way his fastidious adherence to the rules makes him unlike the rest of humanity, the Diocese issued more than one press statement about how they had “done everything right.” They do this without coming to the explicit defense of shuls, synagogues, or schools in red zones who were also operating safely.

The Diocese’s initial complaint, filed on Oct. 8, alludes to Cuomo’s statements singling out Orthodox Jewish communities—indeed, going so far as to file a supplemental declaration the next day: a transcript of Cuomo’s CNN comments saying that Catholic schools had been forced to close due to their proximity to Orthodox Jewish “clusters”—but there is nothing like the coordinated appeal to the two faith groups’ shared values seen in Yavneh.

“A three-stranded cord will not quickly be broken,” the book of Ecclesiastes says. In Yavneh, this maxim was borne out in a principled, coordinated effort by Jewish, Christian, and Catholic schools.