In recent months, the ongoing battles between New York’s ultra-Orthodox Jewish community and the New York State Education Department have hit a crescendo. At its core, the conflict is over fundamental disagreement about the scope of the state’s power to regulate yeshiva education. But as a legal matter, it revolves around two words in New York’s education law requiring that instruction at private schools be “substantially equivalent” to what’s taught public schools.
The “substantially equivalent” standard may sound straightforward—as long as you teach the kids math and spelling, the state won’t interfere in what you say about the origin of life—and yet, it’s anything but. Legal challenges working their way through the courts pit the deeply felt instinct to protect the welfare of children against the uniquely American devotion to protecting religious liberty that inspired the country’s founding. So far, New York state has ruled to preserve the right to religious practice in areas ranging from schools to dietary laws. But that precedent is being slowly reversed in court cases and legal arguments that hinge on reinterpreting some of the constitution’s foundational precepts and will have far-reaching consequences both for religious communities and broader attitudes towards the freedoms to which they’re entitled.
Increased attention to the content and quality of New York yeshivas, attended by approximately 165,000 children, flows in part from the efforts of a single organization—Young Advocates for Fair Education (YAFFED)—that advocates for improving the quality of education within ultra-Orthodox communities. YAFFED has pursued multiple avenues as part of its advocacy agenda, including releasing an investigative report and filing a federal lawsuit alleging that New York education law is unconstitutional because it offers Jewish schools special exemptions from state laws. To be sure, YAFFED’s report has been disputed and its lawsuit subsequently dismissed. But responding in part to these efforts, the New York City Department of Education conducted its own three-year investigation into the “substantial equivalency” of instruction in 39 yeshiva day schools, which ultimately produced, at best, equivocal findings and results.
The YAFFED case has gained momentum, and last November led the New York State Education Department to announce a new framework for local authorities to determine whether nonpublic schools were, in fact, providing a “substantially equivalent” education. Failure to satisfy these guidelines did not simply mean that a school would lose funding; any student attending a school that didn’t meet the requirement would be classified as a truant and given up to 45 days to find another school to attend. Outraged ultra-Orthodox leaders responded by encouraging their community to gear up for the legal and political battle ahead and lambasting the “draconian” new guidelines as harbingers of destruction for the community’s religious values. And the ultra-Orthodox community was not alone. Catholic schools, concerned that the guidelines “practically guarantee[d] inconsistency and subjectivity” by placing their local public-school competitors in the position of evaluators, announced they would not comply with the new rules.
Controversy over the new guidelines has dominated the headlines but the real challenge is posed by YAFFED’s litigation strategy against the state, which presents an overlooked threat to the American religious liberty project.
The allegations at the center of YAFFED’s lawsuit focused on the so-called Felder Amendment, named after New York state Sen. Simcha Felder, who secured amendments to New York’s education law intended to loosen the “substantial equivalency” requirement. The amendment allowed the education department to take a more holistic approach to evaluating whether a school’s educational program is substantially equivalent, allowing it to focus on considerations such as whether the curriculum “develops critical thinking skills … by taking into account the entirety of the curriculum.”
The constitutional issue raised by YAFFED isn’t about the terms of Felder’s amendment but, rather, who it is intended to benefit. The provisions of the amendment apply only to nonpublic elementary and middle schools that are “non-profit corporations … have a bi-lingual program,” and provide schooling from “no later than nine a.m. until no earlier than four p.m. for grades one through three, and no earlier than five thirty p.m. for grades four through eight, on the majority of weekdays.” Employing these gerrymandered categories, ensured, without doing so explicitly, that the Felder Amendment only applied to yeshiva day schools. And because the Felder Amendment provided a unique benefit to the ultra-Orthodox over other religious communities, YAFFED contended that it violated the Establishment Clause of the First Amendment, which requires separation of church and state.
But instead of deciding this argument, New York federal District Court Judge Leo Glasser dismissed the case on the ground that YAFFED lacked the requisite “standing” to bring the lawsuit because it had not demonstrated how it had been harmed by the Felder Amendment. That may have seemed like a loss for YAFFED but, in fact, the court provided the organization with a clear blueprint if it wants to try filing again: Just refile the suit in the name of individuals who claim they were harmed by the Felder Amendment.
In 1990, the Supreme Court narrowed the religious liberty protections, concluding that the First Amendment does not protect individuals from laws that just happen to incidentally place a burden on a religious practice. If someone needs a religious accommodation for a law because that impedes their religious practice, the proper venue for redress, according to the Supreme Court, is the legislature. There have been exceptions to this precedent but they have not, up to this point, fundamentally altered the rule. YAFFED’s argument, however, raises questions about the viability of legislative fixes. That is because, on YAFFED’s argument, providing targeted accommodation to a particular religious group isn’t a form of permissible religious liberty encouraged by the law; it is a constitutionally prohibited form of religious establishment that contravenes the required separation between church and state.
To get a flavor for the real-world impact of this argument, consider the following. Federal law currently requires all forms of animal slaughter to be “humane.” Under typical circumstances, that means before an animal is slaughtered, it has to be “rendered insensible to pain” by, for example, “gunshot or an electrical, chemical or other means.” But on nearly all accounts, doing so would render the animal’s meat not kosher. Sensitive to this quandary, federal law also added the following; slaughter is humane if done “by slaughtering in accordance with the ritual requirements of the Jewish faith” as well as any other religion that adopts the Jewish law rules for ritual slaughter.
Traditionally, legislatures have been able to modify laws so they express the religious tolerance and pluralism that forms the backbone of America’s value system. YAFFED, however, argues for the antithetical view that granting religious exemptions is not an admirable application of the constitution’s religious liberty principles but rather, evidence of privileging one religion over others and thus a violation of the First Amendment.
And here’s the rub. Though he dismissed the case, Judge Glasser’s opinion actually endorsed principles that veer toward YAFFED’s questionable view of targeted religious accommodations. Taken to an extreme, YAFFED’s legal logic threatens the government’s ability to protect the rights of religious communities to uphold the requirements of their faith. That Judge Glasser invoked this alternative view when analyzing the Felder Amendment raises some serious concerns, especially given the relative ease with which YAFFED might restart this lawsuit.
There is an old legal adage: Hard cases make bad law. Ultimately, the YAFFED lawsuit pits two core commitments against each other—the autonomy of religious families and communities to control the education of their children, and the responsibility of society to ensure that all its citizens have access to a meaningful education. Casting these values, like gladiators, into a constitutional death match, raises the prospect that the devotion to protecting religious liberty, so essential to the American project, will suffer as collateral damage.
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Michael A. Helfand is professor of law and associate dean at Pepperdine Caruso School of Law, visiting professor at Yale Law School, and fellow at the Shalom Hartman Institute.