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Perspective: How Orthodox Jewish schools came to the front of the religious freedom conversation

Disputes about New York’s yeshivas and Yeshiva University show that Jews can’t — and won’t — opt out of the dilemmas of a pluralistic society

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Yeshiva University students Aaron Heideman, left, and Marc Shapiro study in the university’s library in New York in 2019.

Yeshiva University students Aaron Heideman, left, and Marc Shapiro study in the university’s library in New York, Thursday, Dec. 12, 2019.

Luis Andres Henao, Associated Press

Orthodox Jewish education is an unlikely object of national attention. Only around 5.8 million of the United States’ 330 million inhabitants identify as Jews and just 9% of that cohort call themselves Orthodox. The number of people affected by disputes about curriculum and policies at Torah-focused institutions is proportionally miniscule.

But orthodox education has become a national issue. Two controversies — one arising from Hasidic schools, also known as yeshivas, the other from Yeshiva University — have generated mainstream media coverage and a case likely to end up before the Supreme Court.

In the past few decades, most debates about religious freedom have revolved around conservative Christians, leading some commentators to place the very phrase in scare quotes. Disputes about yeshivas and Yeshiva show that Jews can’t — and won’t — opt out of the dilemmas of a pluralistic society.

The issues arise from different ends of the Orthodox spectrum. The yeshivas controversy involves groups that trace their origins to 18th-century Eastern Europe. Not just “ultra-Orthodox” (or, more correctly, Haredi) in practice, and organized around the authority of dynastic rabbis, Hasidic communities also favor Yiddish as the language of daily communication.

Yeshiva University represents a different conception of Jewish life. Although it emerged from more traditional institutions, by the 1920s the university was developing an innovative strategy for combining intensive religious study with a rigorous secular curriculum. Over time, Yeshiva became the American flagship of the Modern Orthodox movement.

The specific issues raised by each case are also different. Because the term “yeshiva” refers generically to schools that emphasize traditional Jewish methods and texts, there’s nothing controversial about yeshivas per se. The dispute revolves around a subset of Hasidic yeshivas, enrolling about 50,000 boys, that are accused of failing to provide adequate instruction in English and other secular subjects.

Critics argue that this places the yeshivas in willful violation of state law requiring private schools to demonstrate “substantial equivalency” to public ones. The criticism has been bolstered by a recent report in The New York Times that said the Hasidic schools have collected hundreds of millions of dollars in government aid.

No one questions that Yeshiva University provides superb education in secular subjects. Like the largely Modern Orthodox schools that serve as feeders, the school produces some of the most accomplished students in the country. The problem is ostensible discrimination. Yeshiva University does not require students to observe Jewish law or Orthodox norms in their private lives. But the university administration refused official recognition of a LGBTQ club, provoking a challenge under New York State’s expansive human rights law.

Americans share a characteristic temptation, famously noticed by Alexis de Tocqueville, to reduce political questions to judicial ones. In these cases, this means arguing about New York State education regulations, the implications of Yeshiva University’s incorporation status, recent Supreme Court precedents or the original meaning of the First Amendment’s free exercise clause. For centuries, Orthodox Jews have been ridiculed for their devotion over the minutiae of law. But secular Americans are hardly in a position to criticize anyone for legalistic obsessions.

It’s worth stepping back from formal issues to confront the substantive question that underlies both cases. What should a society theoretically committed to pluralism do when religious institutions diverge from secular expectations — or even the practices of most their official co-religionists?

Most Americans, I suspect, are inclined to answer that religious institutions and their members should be as free as possible, consistent with the maintenance of a pluralistic society. But that is where the agreement ends. 

The reason is an ambiguity in pluralism itself. For critics of both the Hasidic yeshivas and Yeshiva University, pluralism is ultimately a matter of personal choice. In the different ways, both Hasidic educational practices and Yeshiva University’s club policy restrict the ability of individuals to make their own decisions about what kind of lives to lead.

The irony is that encouraging pluralism at the individual level can mean that institutions become increasingly similar. At least to the extent that they enjoy any public benefits, religious schools are expected to teach a full secular curriculum to ensure that students are equipped to leave insular communities if they choose to do so. Religious universities are expected to recognize the same range of sexual identities as their secular counterparts. That does not mean they can’t express preferences for particular teachings, however, unpopular. But it becomes difficult for them to embody those beliefs in their educational and administrative practice.

In the past, American schools and universities reflected a broad range of religious and cultural possibilities. Under the twin pressures of increased regulation and a nationalized marketplace, they’ve become harder and harder to tell apart. Institutions like Notre Dame and Georgetown once offered a specifically Catholic approach to higher education, often drawing on their networks of feeder schools and parishes. Today, they’re practically indistinguishable from elite secular universities — many of which also have almost forgotten religious origins farther back in the past.

Given its unique role in combining traditional Jewish study with excellence in secular subjects, it would be a tragedy for Yeshiva University to follow the same path. Recognizing the LGBTQ club may seem like a minor concession to toleration. But the imposition of that outcome by law means denying the school’s own leadership, including rabbis, the authority to determine for themselves what it means to be a university that is also a yeshiva.

The Hasidic yeshivas issue is more challenging because it involves children. Parents make a range of decisions that affect their children’s opportunities — including the choice of schools that strongly promote (or discourage) particular ways of life. Still, it’s not unreasonable to insist that all children receive instruction in elementary skills required to navigate the broader society.

“Substantial equivalency” is the wrong standard because it lets secular government set the curriculum. In New York state, that could include a range of topics, including “physical fitness, health, and the worthy use of leisure; highway safety and traffic regulation.” Learning about those matters might be desirable but does not justify legal coercion. Basic competence in math and reading and writing English seem like fair game, however.

Yet many public schools also fail to successfully impart these abilities to students. While there’s considerable variation within the system, dozens of schools in New York City have rates of English and math proficiency below 20% — not much better than many Hasidic yeshivas. It’s true that these schools are subject to greater oversight. But they also receive vastly more money for barely superior results.

A plausible compromise, then, might be to condition the availability of education-related funds to Hasidic yeshivas on demonstration of adequate instructional time and resources to core academic subjects. But this is only a portion of the aid reported by The New York Times, which included large sums for antipoverty programs. Hasidic communities have also been accused of inappropriately using other non-instructional funding routed through schools to their communal advantage. Even if true, that’s a matter of administrative compliance, not curriculum.  

To be clear, these suggestions are more thought experiments about the implications of pluralism than legal or political arguments determined by the city, state or federal context. What actually happens to the yeshivas and Yeshiva is up to legislatures, courts and ultimately voters. But however these cases are resolved, the problems they raise aren’t going away. Among the most powerful advocates of a liberal order, Jews remain symbols of their paradoxes.

Samuel Goldman is an associate professor of political science and executive director of the Loeb Institute for Religious Freedom at George Washington University.