The Schools

Every morning, five days a week, hundreds of yellow busses transport thousands of boys, all wearing the pais (side curls) and tzitzit (knotted tassels) that mark them as ultra-Orthodox Jews, to schools around New York and New Jersey.

These boys are now at the center of a legal and philosophical battle. On one side are people who believe that every American child is entitled to a basic education sufficient to allow them to make their way in the world. On the other are those who believe that parents in a religious community have unlimited rights to decide what their children learn.

All ultra-Orthodox children attend religious schools, called yeshivas. But within the Hasidic world, a subset of the ultra-Orthodox population, many boys attend schools in which the languages of instruction are Yiddish and Hebrew and few if any secular subjects are taught. In New York City alone, there are over 100 Hasidic schools in which over 50,000 boys are receiving inadequate secular education. The typical boy gets only 90 minutes of secular instruction, in English, four days a week, between 3^rd and 8^th grade. The remainder of the school day, which can stretch to ten hours, is focused on the study of Torah and rabbinic commentary. At least one Brooklyn school proudly teaches no secular subjects at all.

When these boys graduate, many are functionally illiterate in English and cannot pass the GED. Some only learn to write their names in English when it comes time for them to sign their marriage certificates. One parent told a reporter that her child could barely read the side of a cereal box. Another parent’s ten-year-old boy was told by his teacher that the planets revolve around the Earth. A father of three boys lamented that they were unable to read English street signs and cautionary signs at the zoo. Should these boys or young men wish to leave the Hassidic world, they have grave difficulties finding jobs. (Because girls are not expected to spend their days studying Torah, and because they are often the breadwinners and the ones who engage with the outside world, their English and secular education is somewhat more adequate.)

Historically, this was not the case. In the “Golden Age” of Hasidism in Europe in the 18^th and 19^th centuries, Torah study was not a typical lifetime occupation. But by the second half of the 20^th century, immigration, pogroms, and, finally, the Holocaust, eradicated the Hasidic communities in Eastern Europe, whose remnants took root and flourished in the United States and Israel. In both countries, social welfare safety nets such as food stamps and housing subsidies enabled lifelong Torah study to become more normative. Men can have large families and still devote most of their time to Torah study, relying on a mix of spousal income, family and community support, and social services to keep a roof over their heads and food on the table, however frugally. Many men do work within the community, for example as teachers.

Yeshiva education exists to support this way of life. Children of both sexes begin school early, at age three, in part to relieve parents of some of the burden of large families. For boys, instruction until the 4^th grade is entirely in Yiddish, and no secular subjects are taught. Between the ages of eight and thirteen, boys get ninety minutes of secular study a day, mostly in math and English, with no science or history. At age thirteen, secular study ends.

As Shulem Deen describes in his memoir of life in the Hasidic town of New Square, New York, All Who Go Do Not Return, even those ninety minutes are of poor quality, because the rebbes, the religious teachers who run the school and teach the religious classes, deride secular study as a waste of time. Some of the boys routinely leave school at the start of the secular class block, claiming that their parents forbade them to study English. Boys are allowed to “blow off” their secular studies, eating and chatting with their backs to the secular teacher, in contrast to their strict obedience to religious teachers. “Bedlam and general lack of cooperation” characterized classes taught by “outside” teachers, according to Robert Kamen, in Growing Up Hasidic: Education and Socialization in the Bobover Hasidic Community.

Unfortunately, lack of English makes employment difficult. As Deen watched a friend fail at a programming course because of his poor English, he wondered, “[W]as this to be my children’s fate, to be raised not only with rigidly defined roles but deprived of any ability to step out of them?”

The paucity of secular education for boys is compounded by the rigorous enforcement of cultural isolation. At the end of World War II, the tattered remnants of Hasidic communities faced a dilemma: where should they go to rebuild their lives? New York City was then home to the largest number of Jews in the non-communist world. Thus, to quote Kamen, it “offered the promise of regeneration to a confused and decimated culture.”

However, America also signified the dangers of assimilation. “Many of the new immigrants feared that what the death camps began, life in America would finish,” wrote Kamen. As he points out, the Hasidim are unique in their determination to resist integration into the prevailing culture, while settling down right in the middle of it. The Amish and Mennonites and other similar groups chose rural environments consonant with their largely agrarian lifestyle. Rejection of technology such as telephones and automobiles also served as a barrier to integration. But the average Hasid lives in a large American city and uses the subway to get to work, a mobile phone to stay in touch, and is likely benefiting from some form of public assistance. It is much more challenging under these circumstances to keep one’s metaphorical fences intact, and much easier for the Hasidic youngster to take the subway somewhere where no one knows her, and to sneak into a forbidden cinema or sample a forbidden food. Education of children becomes the primary means by which the group is held together.

The Legal Challenge

Until recently, little attention had been paid to these underperforming yeshivas.  However, in 2012, Naftuli Moster founded Young Advocates for Fairness in Education (YAFFED), whose mission is to ensure that yeshivas in New York deliver a sound basic education to their students. Moster was educated in Hasidic schools with limited secular education, and he struggled greatly when he left the community. He didn’t even realize that he did not have a high school diploma, and he had never heard the words “essay,” or “molecule.”

The last thirteen years have been a grueling legal battle in YAFFED’s fight to get yeshivas to comply with the law. New York Education Law Section 3204 mandates that non-public schools provide an education that is “substantially equivalent” to those subjects offered in public schools, including English, math, social studies, and science. However, the city and state governments have shown little interest in enforcing this law. Hasidic communities are strong voting blocs and shielding yeshivas from oversight has become their primary issue.

Forcing the government to do its job is one of the hardest things to do legally, especially when it is almost impossible to find a complainant with “standing,” a person who is being hurt and in a position to bring forward a lawsuit. If it even appears that parents may be likely to complain, the school will simply dismiss the child. In any case, parents cannot logically bring suit against a private school for providing an inadequate education, as the obvious remedy is to send their child elsewhere. The more likely plaintiffs are divorced parents who have left the community and adopted more modern views on education, but whose children remain in the community with the custodial parent. However, these parents often find that even occasional visitation is precarious and are unwilling to take the risk.

In 2022, possibly in response to some revelatory New York Times reporting, the NYS Board of Regents finally enacted regulations meant to hold private schools to minimum standards. However, the enforcement mechanism is unclear and will likely be left to local school districts. The loopholes are legion. At this point, for the individual yeshiva boy, nothing has changed.

Children’s Rights to Free Exercise

Those who support the right of parents to send their children to these restrictive institutions rely on the free exercise clause of the Constitution, suggesting that religious communities should have the freedom to educate their children as they see fit. These include members of the ultra-Orthodox Jewish community and conservatives who support a strong version of parental rights opposed to any state control over education.

The Hasidic attempt to enforce a pre-Enlightenment way of life raises philosophical challenges in 21^st-century United States, putting pressure on the perennial problem of how much toleration a liberal state should or must extend to an illiberal community in its midst. A religiously liberal society ought to support even religiously authoritarian communities or lose its claim to liberalism.  Communitarian philosopher William Galston, in his 1991 book Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State, claims that, “properly understood, liberalism is about the protection of diversity, not the valorization of choice. . . . To place an ideal of autonomous choice… at the core of liberalism is in fact to narrow the range of possibilities available within liberal societies.” In other words, to require that the Hasidim support their children’s ability to make autonomous choices when they become adults is to require that the Hasidim not be Hasidim. Hasidic values include religious observance, love of God, and conformity to community norms, the very opposite of autonomy.

On the other hand, these Hasidic boys are American children, with rights to “life, liberty and the pursuit of happiness.” Surely it negates the free exercise clause if these children are denied the basic tools to make their way in the world because of their parents’ religious beliefs. How can we say that Hasidic children have fewer rights than other children? In America, parents have a great deal of sway over their families, but they do not own their children. When children come of age, they have the right to choose their own religion and their own way of life; if they do not have a basic education, that right becomes difficult if not impossible to exercise. Even Galston concedes that closed communities must provide exit ramps.

Whether they knew it or not, when the Hasidim made their way to America, they entered into a bargain. In America, Hasidic Jews have religious freedom to a degree unparalleled almost anywhere else. Their clothes, their synagogues, their language, their food, their Sabbath observance, are all peculiar to the typical American eye, but they go about their business largely undisturbed, and even supported.

But this freedom is a double-sided coin. In America, everyone is guaranteed religious liberty. Including children. Not, of course, that a Hasidic child, or any child, can decide on his own that he would rather not attend synagogue, or would prefer to sample the Catholic church down the road. But once that child becomes an adult, that is exactly what he can do.

The state has a powerful obligation to protect all children’s access to an education adequate enough to allow them to shape their own futures. The most compelling argument for this case relies on legal philosopher Joel Feinberg’s theory of a “child’s right to an open future.”

Feinberg believes that rights can ordinarily be divided into four kinds. There are rights that adults and children have in common (e.g., the right not to be killed). There are rights that are generally held only by children (or by dependent adults). These dependency rights derive from the child’s dependence on others for such basics as food, shelter, and protection. Third are rights that can only be exercised by adults, such as the right to marry or to practice the religion of one’s choice.  Finally, and most important for our purposes, are what Feinberg calls “rights-in-trust,” rights that are to be “saved for the child until he is an adult.” These rights can be violated by adults now, by acting in ways that cut off the possibility that the child, when it reaches adulthood, can exercise them. Child marriage is an example of adults making a decision that blocks the child’s ability to choose their own spouse upon attaining adulthood. Rights in this category include virtually all the important rights that we believe adults have, but which must be protected now if they are to be exercised later. Grouped together, these rights constitute what Feinberg calls “the child’s right to an open future.”

By refusing to educate their children to make their way in the outside world, Hasidic communities violate their children’s right to an open future. This, of course, is exactly their goal. The Hasidic ideal is to educate children to be righteous Jews, put family first, and comply with the norms of the community. And they have every right to advocate for those ideals and to model them for their children. But they also, as Americans, must allow their kids the basic tools to make other choices. It is the state’s responsibility to make sure that happens.

 

Dena S. Davis, J.D., PhD, is emerita Endowed Presidential Chair in Health and Professor of Religion Studies at Lehigh University. She currently resides in New York City.