From Jay P. Greene <[email protected]>
Subject Religious Liberty and Education
Date September 9, 2021 6:01 PM
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Dear Colleagues:
Next week we are hosting an event at the Heritage Foundation <[link removed]> to discuss the book I co-edited, Religious Liberty and Education: A Case Study of Yeshivas vs. New York <[link removed]>. If you cannot join us in person, we will be live-streaming <[link removed]> and recording the gathering to be watched at your convenience.
At the risk of cannibalizing what I am planning to say next week, let me briefly describe what motivated me to organize the book and what I learned from the contributors. The controversy over Orthodox Jewish schools, or yeshivas, in New York has much broader implications for religious liberty in education. The state of New York has had a law in place for over a century that requires all schools, including religious schools that receive no state subsidies, to teach a curriculum that is “substantially equivalent” to that taught in the public school system.
This law was originally designed to force Catholic education to mimic public schools that were geared toward Protestant ideas as part of the “Know-Nothing” movement that felt threatened by Irish and later Italian immigrants. Catholic schools, however, were generally already eager to imitate much of the traditional public school approach to prove their good standing as Americans, so the law was never really put to its original use.
The law remained dormant for a century until some have tried to revive it for a new use in targeting yeshivas. Unlike their Catholic counterparts, Orthodox Jewish education is often dramatically different from what can be found in public schools. Students spend large parts of their days studying ancient religious texts and commentaries in a variety of languages, including Hebrew, Aramaic, and Yiddish. In a few yeshivas, they devote virtually no school time to English language instruction or learning science. A small group of former students who were unhappy with this education have organized to pressure the state of New York to enforce its long-dormant statute and force the yeshivas to alter their curriculum to resemble the set of subjects and time-allocation found in public schools.

Supporters of the yeshivas have rallied to their defense, noting the remarkably high rates of academic success and accomplishments of yeshiva graduates despite – or perhaps because of – their very distinctive education. Other groups have joined in this defense, including the Catholic school system, home-schoolers, Muslim schools, and progressive schools – all of whom offer, or wish to have the option to offer, educations that are not “substantially equivalent” to those found in New York public schools.
The issue at stake is whether it is possible for private communities in the United States to educate their children in a way that is substantially different from how public schools attempt to educate students. Given that religious communities often have the strongest interest in a type of education that is dramatically different, the more pointed question is whether the government can forbid religious communities from raising their own children with a distinctive education that prioritizes their values and convictions. If the yeshivas in New York lose this battle, no religious community could be confident that it could resist government oversight of the content of the education offered to their children.
A main lesson I learned from the various contributors to this edited volume is that the law does not clearly support religious schools in maintaining autonomy. While the Supreme Court ruled in Pierce vs. Society of Sisters that “the child is not the mere creature of the State” in striking down an Oregon law that forbid private education, that same decision clearly endorsed the position that the state could regulate the content of that education.
Before working on this book, I had imagined that the state could not regulate a private, religious education that it did not fund – that government shackles required schools receiving government shekels. But as it turns out, the government can impose shackles without providing shekels. The cover of private funding and religious freedom does not provide full protection from government control.
Champions of religious liberty should not rely solely on the courts and must organize politically if they wish to maintain their freedom. The good news is that New York’s yeshivas are showing that it is possible to mobilize a vigorous and diverse coalition to protect everyone’s religious liberty. Tune into our event next week to learn more about how and why this is happening.
Jay P. Greene
Senior Research Fellow in Education
The Center for Education Policy

Institute for Family, Community, and Opportunity
The Heritage Foundation

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