The Regents of the State of New York have voted to impose specific curricular demands upon religious and private schools. The move is redolent with paternalistic hubris, and a dangerous usurpation of both religious and parental rights. Even worse, it is precisely the wrong way to go about assuring the quality of education that the State desires, especially since a better way is readily available. Governments ought to use carrots in place of sticks. Even where sticks might seem necessary, the best sticks are withholding carrots.
The Regents are concerned or frustrated with the reluctance of some (but hardly all or even most) Jewish Hasidic groups to provide secular education comparable in hours and scope with that offered in public schools. These groups see their cultural isolation as an important part of their religious ethos. No one doubts their sincerity; whether we find that desirable or not, it should definitely be their religious prerogative to exercise.
As the United States Supreme Court told us in Wisconsin v. Yoder “Courts must move with great circumspection in performing the sensitive and delicate task of weighing a State’s legitimate social concern when faced with religious claims for exemption from generally applicable educational requirements.” Whenever a state undertakes to regulate religious schools, it will encounter constitutional litigation. In Blackwelder v. Safnauer, a district court put it well; states need to regulate in a way that provides “sufficient leeway to accommodate the special requirements of diverse religious groups without sacrificing the vital state interests at issue.”
Why have the Regents embarked on such a legally fraught journey? Largely because the Hasidim do not conform to the Regents’ orthodoxies. The Hasidic schools that are being discussed do educate their children, just not in the subjects that New York State wants taught. These schools are counter-cultural par excellence — they teach girls more secular subjects than boys; sex-ed does not make it to first base (and if it did, it would be decidedly heteronormative). On top of that, they do it all in Yiddish, to make sure that their students never really feel comfortable in American society. If this were a Native American school, we would admire their cultural gumption. This is not tolerable, somehow, for Jews. And make no mistake — these students learn how to critically think — which helps them do extraordinarily well in entrepreneurship. They also learn to be law abiding citizens in a poor community with miniscule crime rates.
The Regents desire to regulate these school because they do not teach what the state thinks the students should learn in school, and not because the students are learning nothing. This is part of a general desire to impose greater cultural conformity. Several of those attempts have been successfully resisted at the Supreme Court level, and this one will be as well.
Were the Regents truly concerned with problems in the Hasidic schools (and this is hardly a settled matter; the recent New York Times expose was countered by a NY State legislator, who happens to be Hasidic), they have an alternative for all to see with no strong-arming curriculum and without placing themselves above parental rights. States can — and should — connect financial assistance to teaching its curriculum. This would, of course, be completely constitutional and hard to challenge, other than politically.
Even as the State cannot force children into schools if they religiously do not want to go, no State is under any obligation to financially support religious education or secular education in a religious setting. States can decline to provide lunch for hungry children at religious schools that have no secular education, decline to provide heating aid to ensure that Talmud is studied only in cold classrooms in the winter. If that seems a bit morally off, States could provide more aid to those Hasidic schools that do provide a secular education to incentivize them. Just because the states cannot close these schools, does not mean the state has to provide buses to take the children to them, or pandemic aid to help them with health emergencies. Carrots are the constitutional method states have to achieve the policy goal here.
The constitutional objections to closing religious schools are overwhelming, and somehow reek of grandstanding — makes a lot of noise, sells papers and gets politicians reelected — but does not improve the lot of any Hasidic children. It is an intrusion that does not bode well for Christian and private schools, or for home schooling. If New York is serious about its curricular regulations in Hasidic school, it will address them with two-sided financial incentives — giving carrots and withholding carrots — and nothing else.
Rabbi Yitzchok Adlerstein taught Jewish Law at Loyola Law School in Los Angeles before moving to Jerusalem where he teaches, writes, and is active in interfaith affairs.
Rabbi Michael Broyde is a Law Professor and the Berman Projects Director in the Center for the Study of Law and Religion at Emory University. He has served in a variety of rabbinic roles in the past from synagogue rabbi to dean of an Jewish Studies institute to director of a rabbinical court.