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As New York Once Again Targets Religious Schools, a History Lesson in Communal Resistance

Eighty years ago, the state tried to take over religious education. What happened next still serves as a blueprint for concerned parents and educators.

Marvin Schick
August 12, 2019
Photo: Andrew Lichtenstein/Corbis via Getty Images
Photo: Andrew Lichtenstein/Corbis via Getty Images
Photo: Andrew Lichtenstein/Corbis via Getty Images
Photo: Andrew Lichtenstein/Corbis via Getty Images

Next month, the Rabbi Jacob Joseph School in New York will begin its 121st year educating Jewish children. It will also be my 46th year serving as its president. When I accepted the position, I understood that I would confront some of the same challenges that my predecessors faced: demographic shifts, communal apathy, and fundraising difficulties.

This year, however, I and other yeshiva leaders are facing an additional and significant challenge, an attempt by New York State to impose a rigid set of rules that would alter the essential character of private schools, parochial and independent alike, where parents and educators work together to instill their values and strengthen their communities.

Last November, the New York state education commissioner announced new “guidelines” that required all private schools to adopt the state’s curriculum for their elementary schools. The guidelines were accompanied by a checklist that contained a dozen classes required to be taught at nearly every grade level, including theater, arts, dance, and career development. For several grade levels, there was also a mandatory amount of instructional time that schools were required to devote to those classes.

Lawsuits were filed by a coalition of Catholic, independent, and Jewish schools. The Rabbi Jacob Joseph School was proud to be among the plaintiffs. At a court hearing this past April 15th, a lawyer for the New York State Education Department appeared in Albany Supreme Court to defend those guidelines. His argument illustrates the stakes: He claimed the rules were imposed for the “voiceless child who can be conscripted at their parents will” to attend a private school.

Four days later, the court declared the guidelines “null and void.” But what the court could not nullify is the bureaucratic mindset that denigrates parental choice and characterizes as conscription the act of choosing to pay for a child’s private or religious education. The state has now repackaged these rejected guidelines into proposed regulations with identical requirements. The Board of Regents will soon be asked to consider them.

More than 50,000 private school parents and alumni have submitted written opposition to these proposed regulations. More are sure to follow in the weeks to come.

In bracing for this conflict, it occurred to me that all those interested in its outcome would do well to recall what happened 80 years ago, when the state last attempted to transform private religious education.


There were far fewer Jewish schools and yeshiva parents in 1939, when the state’s Board of Regents adopted the following resolution:

Voted, 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 education law…

All 26 yeshivas then in existence in New York had a dual curriculum, with Jewish studies beginning in the morning and continuing into early afternoon. In the state’s eyes, they were all in violation of the law, and all were at risk of having their charters revoked. That would have meant the end of yeshiva education in New York. The yeshivas were given until the start of the school year, Sept. 1, 1939, to reorganize their schedules.

The regents must have quickly become educated about the impossibility of implementing such a radical change in such a short period of time, because just a few months later, on June 16, 1939, the regents consented to “extend for one year the period for readjustment of the daily schedules of private or parochial schools in which the morning session is carried on in a language other than English.”

The new deadline for yeshivas to reorganize was set for Sept. 1, 1940.

What happened next is not entirely clear, but we do know that the yeshivas did not fundamentally alter their schedules. Matters came to a head on March 20, 1942, when the Board of Regents took up the issue again. They began by noting that “it appears that a number of schools have not complied with this requirement, in spite of repeated urgings by the Education Department.”

The regents then adopted a resolution that authorized the state Education Department to send a notice to every trustee of each school not in compliance advising them that at the next scheduled Board of Regents meeting “a hearing will be given when any objections to the revocations of the charter of said corporation will be considered; and that the notices for such meeting shall specify that action is then to be taken on such proposed revocation.”

In advance of the hearing, all 26 yeshivas submitted a single brief to the regents. It was over 100 pages long, yet almost all of what was written there mirrors the advocacy of today’s religious and independent schools. One section in particular summarizes in ten concise points the yeshivas’ arguments, all of them still sadly relevant today:

1. Parents have the liberty, guaranteed by the Fourteenth Amendment, to direct the upbringing and education of their children, and the State may not interfere therewith.

2. The State has no power to standardize its children by requiring them to accept instruction from public teachers only, and parents may not be compelled to send their children to public schools for instruction.

3. Experience shows that instruction in a foreign language to children at an early age is not injurious to the health, morals or understanding of the ordinary child.

4. The State may not prohibit the teaching of a foreign language to children of elementary school age.

5. The State may not prohibit a parochial school from teaching any subject in a language other than English.

6. Private or parochial schools are engaged in an activity which is not inherently harmful, but which has long been regarded as useful and meritorious.

7. The conducting of a private school is a property right and the State mav not enforce an educational statute in such manner as to deprive such school of its patronage or destroy its business.

8. The child is not the mere creature of the State, and its parents have the right and duty to recognize and prepare him for additional obligations.

9. The owners and patrons of private schools have a reasonable choice and discretion in respect to teachers, curriculum and text books.

10. The State may not enforce an educational statute in such manner as would deprive parents of a fair opportunity to procure for their children instruction which they deem important and which is not harmful.

The brief was prepared by a notable Jewish activist and attorney, Louis J. Gribetz, who was a board member of both the Rabbi Jacob Joseph School and Yeshiva Torah Vodaath. The depth of his passion for this cause is revealed by his description of the yeshiva to the regents:

This institution accompanied the Jew everywhere. Never did it forsake or desert him. It defied and outlasted persecution and worlds of hostility, interdictors and censors, momentous global changes. The Jew’s sentiment for the yeshiva barbarism could not stifle, subjugation could not eradicate … No people has ever clung so passionately, so desperately, and so fondly to an educational institution as the Jews to the yeshiva. … No other institution is so deeply rooted in Judaism, or so clearly reveals and interprets its character, or so harmonizes with the Jewish conception of life and God. It has become an inseparable and indispensable part of the Jew’s intellectual and spiritual existence … Despite sneer and derision by the world outside, the Rabbis taught their students there …

The hearing for the 26 yeshivas began on Wednesday, July 22, and continued on Thursday, July 23. These dates are significant, because Tisha B’Av that year began on Wednesday evening. It is, of course, one of the most solemn days in the Jewish calendar. It commemorates the destruction of both Temples, and is observed with additional penitential prayers, abstention from eating and drinking and other restrictions.

There is an unpublished report on the Board of Regents hearing that was prepared by the Yiddish journalist Ephraim Caplan. Caplan had a strong grasp of Jewish history, and he captured the foreboding of a hearing on Tisha B’Av: The representatives of the yeshivas, he wrote, “fatalistically feared that here there commenced a misfortune … a destruction of the Torah, for a harsh decree of the Board of Regents would bring destruction to the Yeshivos, would annihilate the fortress of our spiritual existence.”

According to a New York Times report, among those who testified to the regents at the hearing was state Sen. (and future New York City Comptroller) Lazarus Joseph. Sen. Joseph explained that the analytical training and critical thinking skills that yeshiva students obtained during their morning studies enhanced their learning throughout their school day, whatever the subject. Others bolstered this point by presenting data showing that yeshiva students outperformed their public school peers on the Regents examinations.

Sen. Joseph was not a yeshiva graduate, but he was a board member of the Rabbi Jacob Joseph School, one of the yeshivas in the dock that day and at the hearing this past April. He was also the grandson of Rabbi Jacob Joseph, New York’s only chief rabbi, for whom our school is named.

The argument presented by Sen. Joseph in July 1942 remains true today, as is attested by the professional success attained by yeshiva graduates, and their regular admission to first-rate graduate and professional schools. The Hasidic community has an entrepreneurial spirit that has created thousands of successful businesses in New York and tens of thousands of jobs for New Yorkers of all backgrounds.

As is true of all human endeavors, the yeshiva system has a measure of failure and room for improvement. None of this supports those who believe the worst about yeshivas. Yeshiva critics are likely more offended by our continued success attracting students seeking a religious framework for their lives than by educational failures.

Consider the 1939 regents resolution. It was as concerned with a morning “session in a foreign language” as it was with there being “only an afternoon session in English.” Given the stellar academic performance of yeshivas, it is fair to ask whether the goal was as much to achieve a de-emphasis on Jewish studies as it was an increase in secular instruction.

The same question can be posed today. Jewish schools have a dual curriculum and a dual mission. One purpose is education. The other is religious socialization, the process whereby young children are taught to understand and accept the principles of our faith. This mission transcends courses and curriculum but does require substantial time during the school day, time that under the proposed regulations would need to be shifted away from Jewish studies.

A Jewish school that produces graduates who go on to elite colleges and careers but abandon religious commitment will have failed. Its mission, and the overarching goal of parents who enroll their children, is for students to understand and appreciate the beauty of their faith and their heritage, and for this to be the foundation upon which they build successful lives.

Government may not be able to understand that choice, nor must it approve of it. But government must respect the rights of parents who make that choice for their families. That respect is rooted in fundamental constitutional rights, and it is required by a series of decisions of the United States Supreme Court, beginning with its unanimous 1925 opinion in the case of Pierce v. Society of Sisters.

That ruling rejected Oregon’s attempt to require all students to attend public schools, a decision rooted in the fundamental right of parents to choose how to raise their children. It also contained an admonishment to Oregon that is equally applicable to New York’s attempt to force private schools to become curricular clones of the public schools: “A 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.”

Thankfully, this spirit prevailed in New York in 1942 as well. After its Tisha B’Av hearing, the Board of Regents designated three senior officials at the Department of Education to work with a committee of five representatives of the yeshivas. Among them was Irving Bunim, my immediate predecessor as president of the Rabbi Jacob Joseph School. Yeshiva College also actively participated at the hearing and on the yeshiva committee.

According to minutes of the Aug. 21, 1942, regents meeting, these discussions were “accepted as a mark of progress.” The regents suggested that the department visit the yeshivas, which would permit them to better understand the schools they were seeking to transform. Good advice, then as well as now.

What followed speaks for itself. Those 26 yeshivas with 5,000 children have grown to more than 400 Jewish schools in New York state, educating nearly 165,000 students.

These schools and their graduates have enhanced Jewish life across the world, while contributing handsomely to American society. In our case, these have included, among many others, Nobel laureate Robert Aumann, New York Times writer Ari Goldman, and Louis Henkin—the pioneering human rights lawyer responsible for crafting the United Nations Convention Relating to the Status of Refugees. The arc of Jewish history in the United States would have been altered had the yeshivas been forced to diminish their emphasis on Jewish studies.

The Board of Regents is once again being asked to transform yeshiva education by critics who do not respect the essential character and unique mission of yeshivas. Let us hope that today’s regents have the wisdom and courage to follow the example of their predecessors.


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Marvin Schick is a former political science and constitutional law professor at Hunter College and the New School for Social Research.

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