The Yeshiva of the Times

Published in The New York Sun on Septmeber 9, 2022.

The thing to keep in mind about the furor over the attack the Times is preparing against Orthodox yeshivas in New York is that it is part of a larger struggle — one destined for litigation and even the United States Supreme Court. At issue is New York’s requirement that private schools provide an education substantially equivalent to public schools. And the danger that this is interfering with the religious free exercise right vouchsafed in the federal Constitution.

In this fight, the Sun is on the side of the yeshivas, including the most fundamentalist ones. We see this as among the most important religious freedom disputes. Not because it directly affects huge numbers of New Yorkers. On the contrary, the number of Yeshivas at issue is a fraction of the 440 yeshivas in the state. The larger issue, though, could affect many more religious families, and not just Jews, in New York and beyond.

The story of what the Times is up to hit print Wednesday, with an opinion column in the Sun by a New York state assemblyman, Simcha Eichenstein, a Democrat. He likes to call his op-ed a “pre-buttal,” meaning rebutting the Times before its piece is issued. Mr. Eichenstein gained his estimate of what the Times is going to say by reading a number of emails the Times sent to yeshivas it was investigating and had hoped to visit. 

In one email, Times reporters explained that the paper “has spent several months reporting on Hasidic schools across New York State,” with the aim of producing an “accurate, comprehensive and fair” article about what it calls “the Hasidic boys school system,” which includes “about 150 all-male religious schools in Brooklyn and the lower Hudson Valley” serving “about 50,000 students,” a number it says has been growing.

The email states the Times’ intention bluntly: “The article will say that, overall, students in these schools are deprived of education unlike students anywhere else in New York.” The schools are meant “to wall off students from the secular world.” While the students “learn Yiddish, Hebrew and Aramaic, plus moral values, logic and legal principles,” the schools “provide almost no instruction in basic secular subjects such as history or science.” 

The Times plans to show that in these schools “instructors for secular studies are often woefully unqualified teachers.” The article contends, too, that state data for certain grades show a 99 percent failure rate among students at “Hasidic boys schools” who took “standardized tests” in the last year. The education provided “has left many boys unable to  speak English fluently,” the Times will say. The email says the reporters toured the only yeshiva that let them inside.

One can hazard a guess why most yeshivas don’t want to talk to the Times. It appears, at least to the Orthodox communities themselves, to be part of a drive to clamp down on them in respect of their curricula that’s up for consideration this fall by the Board of Regents. The yeshivas fear this scrutiny is not only going to involve whether they adequately teach math and science, but whether they teach secular topics like, say, sex education. 

The proposed Regents regulations stem from New York’s 1897 “compulsory attendance law,” designed to ensure that children attending private schools are “receiving instruction which is substantially equivalent to that provided in the public schools,” the state education department claims. Religious schools “are guaranteed the right” to educate “in accordance with their religious beliefs and educational philosophies,” the department says.  

Yet state power to regulate religious schools is ripe for reappraisal. In 1925 the Supreme court noted states’ power “reasonably to regulate all schools,” including private ones, and require teaching “certain studies plainly essential to good citizenship.” Yet in 1927 a Hawaiian law regulating private schools’ curricula was struck down for denying parents the chance to “procure for their children instruction which they think important.” 

The precedent from the Hawaiian case was cited by Ohio’s supreme court in 1976 when it struck down the state’s “minimum standards” for private schools. The court found the standards “so pervasive and all-encompassing” that if private schools complied with them, it “would effectively eradicate the distinction between public and nonpublic education,” and deprive parents of their right  “to direct the upbringing and education of their children.”

The high court, however, has yet to tackle head-on the question of to what extent a state can intrude on curricular and instructional prerogatives of religious schools. Considering the court’s recent rulings supporting religious liberty, New York’s attempt to bring religious schools in the state into conformity with its public school system — which is hardly a paragon of excellence — would appear to be a matter well worth review by the robed sages.

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