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Separate Doesn’t Mean Unequal

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The future of gender-separated classrooms for the estimated 10,000 chareidi men and women studying for college degrees in Israel is on the line this week.

On Tuesday, the Supreme Court considered appeals from a coalition of civil rights groups and liberal academicians who claim the separate classes are tantamount to gender discrimination, violating both women’s rights and democratic norms.

The Court also heard counterarguments from the Kohelet Policy Forum, a Jerusalem-based think tank, whose friends of the court brief implored the justices to uphold the legality of the programs.

“This type of gender separation doesn’t interfere with anyone else’s lives,” says Ariel Erlich, head of Kohelet’s litigation department. “We should honor freedom of choice and stop trying to engineer other people’s lifestyles.”

For the past 20 years, a variety of academic programs have sprouted offering college-level courses to chareidi men and women. In 2012, the Israel Council of Higher Education (CHE) hopped on that trend, calling on all colleges and universities to develop special undergraduate degree tracks. They responded in short order, offering degrees in a diverse range of disciplines including law, biotech, optometry, and computer sciences. Although the goal of integrating chareidim into higher education, and ultimately the workforce, has become an imperative for secular Israelis, sometimes the liberal left doesn’t know how to get out of its own way. By 2014, various civil society groups filed suit against the CHE, claiming separate classrooms discriminate against women by excluding them from the public sphere, for example by precluding women lecturers from teaching men, or by setting dress codes for modesty. The attorney general’s office backed their contentions, saying such gender separation has no basis in law.

In response to the pressure, the CHE in 2017 slapped limitations on the separate programs, restricting them to bachelor’s degree programs, and ruled out separate extracurricular campus activities. They also tightened the definition of who is chareidi, a move that prevented many new baalei teshuvah, as well as those chareidim whose schools teach some secular education, from enrolling in separate classes.

Kohelet argued in the Supreme Court that the CHE exceeded its statutory authority with its 2017 rollback. While the CHE is authorized to establish and enforce academic standards, ensure that institutions of higher learning are properly licensed, and provide necessary educational infrastructure, Erlich says the agency “lacks the authority when it tries to dictate — especially to private institutions — the terms of separate programs, or who it can accept or reject under such tracks.”

“It’s scandalous that they don’t allow academic institutions to offer tracks in separate classes and it’s also a form of persecution against the people,” said Rabbi Uri Maklev, a member of the Knesset Constitution, Law, and Justice Committee in an interview just before press time in his Knesset office. “They pretend to care about [chareidim] — that they want them to integrate into higher education and the workforce. And then they place as many hardships in the way to make sure that they don’t. It’s all double-talk and hypocrisy.”

It will be an uphill battle for those trying to preserve the separate tracks. Historically, the Supreme Court has ruled against instances of what they view as exclusion of women from the public sphere as violations of the Basic Laws on Human Dignity and Liberty and Freedom of Occupation, which grants the right to engage in any trade.

Rabbi Maklev says that if the Supreme Court sides with the appellants, the Knesset will have to go back to the drawing board and draft a new law that will be bullet-proof from appeals and Supreme Court intervention.

Yaakov Margi of Shas was working on such a bill, but it’s on hold until after the elections and the formation of a new governing coalition. That gives the Supreme Court the opportunity to beat the Knesset to the punch by issuing its ruling beforehand, the result of which is probably a foregone conclusion.

(Originally featured in Mishpacha, Issue 744)


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