W

e’re about to usher in Chodesh Kislev with Chanukah not far behind, carrying with it the potent message that the threat of assimilation into surrounding society — and that elements within our own people, like the Hellenists of yore, try to force such integration upon us — is a recurrent feature of our national history.

It sounds hyperbolic and overblown, but those efforts in fact continue today, in November 2018: A federal court judge has been asked to render a decision that could cast into serious doubt the ability of all yeshivos and girls’ schools in the state of New York to continue operating within the bounds of the law.

To elaborate: New York law, following longstanding Supreme Court precedent, recognizes a parent’s right to send his child to a non-public school, including a religious school. The law enumerates specific subject areas that must be taught in public schools, and further states that students in non-public schools must receive an education that is “substantially equivalent” to that which children in public school receive.

On March 30, 2018, through the efforts of state senator Simcha Felder, the state education law was amended (the “Felder Amendment”) so as to maintain that “substantial equivalency” standard, but with new provisions added. In the case of elementary schools that are bilingual and have a school day of a specified length, the amendment specifies the subjects that must be taught, and in the case of similarly situated high schools, it requires them to provide “a sound basic education.” In all instances, it directs the state to consider “the entirety of the curriculum.”

There is a group called YAFFED, whose singular goal is to permanently disable the Torah educational system by stripping parents and educators of the right to spiritual and moral self-determination. In 2015 it submitted a written complaint to the New York City Department of Education (DOE) demanding that it investigate 30 chassidic yeshivos in New York City that it claimed were failing to provide their students with the minimal secular education required by law.

The DOE commenced the requested investigation, visiting virtually all of the targeted schools, observing classes and meeting with staff, students, and parents. Under the aegis of a group called PEARLS, which was formed to respond to this challenge and advocate the rights of parents and children to a religious education, many of these schools instituted various changes in curriculum and other educational aspects. The DOE sent a letter to the state in mid-August detailing its findings to date and acknowledging the PEARLS effort to create a “new, more rigorous secular studies curriculum.” 

In July of this year, YAFFED brought the Felder Amendment within its crosshairs, suing in federal district court in Brooklyn for a declaration that this legislation is unconstitutional because it benefits and privileges only Orthodox Jews, and puts forth a vague standard. In response, the defendant, New York State, moved to dismiss the lawsuit on procedural grounds without addressing the constitutional issues raised by the plaintiff.

But then, in late August, the landscape changed dramatically. YAFFED filed a motion before the same court for a preliminary injunction against the Felder Amendment, arguing that it is unconstitutional for the state to take the limudei kodesh component of yeshivah education into account in determining whether it is “substantially equivalent” to a public school education. It alleges that any evaluation of religious studies is an impermissible entanglement of government with religion that violates the First Amendment’s ban on establishment of religion.

The hypocrisy of YAFFED’s assertion is breathtaking: This is the “group” — basically the one-man operation of an embittered ex-chassidic Jew with a fax machine, who has found a law firm to represent him pro bono — that demanded that New York City’s government go into yeshivos to investigate and assess the acceptability of their educational programs, thereby engaging in an entanglement of the highest sort.

But as attorney Avi Schick of the Troutman Sanders law firm argues in an amicus brief submitted on behalf of PEARLS, Agudath Israel of America, Torah Umesorah, and United Jewish Organizations of Williamsburg, the real danger looming in this lawsuit is that if the court accepts its premise— that the skills and knowledge children gain from their kodesh studies cannot count toward fulfillment of the educations requirements — it will mean that parents who choose yeshivah education for their children, from chassidic to Modern Orthodox and everything in between, would be in violation of New York’s compulsory education law.

Consider: New York’s education law requires students in grades seven and eight to complete 11.5 “units of study,” which is defined as at least 180 minutes of instruction per week throughout the school year, or the equivalent. Were the New York State Education Department to make that law the basis for compliance with the substantial equivalence requirement, and were the court to rule that the Jewish studies curriculum cannot be considered in satisfaction of that requirement, “a yeshivah would have to devote 34.5 hours a week— or essentially seven hours a day, five days a week — to secular studies in grades seven and eight,” Mr. Schick writes. No yeshivah anywhere, of any stripe, can meet that requirement.

It ought not to be difficult to defeat YAFFED’s claims. New York already recognizes a spectrum of educational settings and curricula that meet those requirements, such as homeschooling, in which self-instruction is counted toward the required hours; City-As-School instruction, where schools provide only two days of instruction per week and students spend three days a week interning at local businesses; Part-time, Evening and Parental Schools; and Free Schools, in which no standard curriculum is followed and students are expected to take responsibility for designing and achieving their own learning goals.

Moreover, as Dr. Adina Schick, an NYU psychology professor and a top-flight educational researcher, states in an affidavit she submitted in this case, since both Common Core and Next Generation (which New York State is moving toward adopting in place of Common Core) are sets of learning standards designed to ensure students reach a series of reading, writing, and math benchmarks upon graduation but don’t mandate covering specific content to meet those standards, the Felder Amendment directing those assessing substantial equivalence to take “into account the entirety of the curriculum” is “simply stating what is already the case.”

As a result, Dr. Schick states, “As the Common Core and Next Generation are standards-based, there is wide latitude in how the standards can be met. Notably, many of the standards may be satisfied via a Jewish Studies curricula commonly utilized in yeshivos [but this is] not meant to suggest that any school can satisfy the entirety of the standards via its Jewish Studies curriculum.”

So, is what goes on during the morning in yeshivos “substantially equivalent” to public school education? No, says Professor Aaron Twerski, a law professor and nationally prominent expert in tort law. It’s better:

A yeshivah education provides students with critical thinking and analytical skills that far surpass those obtained by students at traditional schools. The length of the school day, the depth of the curricular material, and the almost-Socratic method employed even in yeshivah elementary schools provide students with training that is valuable to them as adults across disciplines and professions.

A yeshivah education places a heavy emphasis on ethical and moral development, as well as cultural identity, traditions, and cohesion. These values may not impress our critics, who focus solely on material success, but they are what matters in life. More significantly, they matter to the thousands of parents who choose each year to enroll their children in yeshivos.

A yeshivah education is remarkably effective in providing the tools necessary for success in the secular world. Indeed, I would challenge any large-scale secular educational system to match the results accomplished by our schools.

The State Education Department has pledged to issue updated guidance to assist school districts in interpreting the substantial equivalence standard. YAFFED’s lawsuit has targeted both the State Education Commissioner and the Chancellor of the Board of Regents; hopefully they will not be affected by YAFFED’s bullying tactics, and will instead acknowledge the intellectual and academic value of limudei kodesh.

I’m writing a column, not a brief for the court, so I don’t have to be understated and politic: The wolves are circling. YAFFED will soon be joined by Footsteps, which is preparing an amicus brief in the case as a “non-profit organization devoted to assisting individuals attempting to leave their ultra-Orthodox Jewish communities and enter mainstream American society.”

Together, they are engaging in a community-wide libel that ought to be declared as such from the bench. Originally featured in Mishpacha, Issue 734. Eytan Kobre may be contacted directly at kobre@mishpacha.com