The cost of tuition at a Yeshiva Day School can be an overwhelming financial burden for young and growing families and the Jewish community. The problem is further exacerbated because, in addition to tuition, families must also typically pay school or other taxes to fund the cost of a public school system that they don’t use. Furthermore, Yeshiva tuition, unlike school taxes, is paid wholly in after tax dollars. Real solutions to the funding of Jewish education have proven elusive.
The Law and the Constitution
However, there is a possibility that some relief may be afforded as a result of a landmark decision last week issued by the Supreme Court of the United States, in Espinoza v Montana Dept. of Revenue (No. 18-1195, decided June 30, 2020, 591 U.S.__). The Court recognized that once a State decided to provide funding to schools outside of its own public school system then it could not peremptorily disqualify religious schools. Said another way, if a State allowed and funded charter schools or vouchers, 
The law differentiates: the fact that a school is pervasively religious and religious instruction is incorporated throughout the classes is irrelevant. What is relevant is that these types of schools only grant ordinary elementary and high school diplomas and do not train clergy.
then there was generally a Constitutional obligation to provide the same kind of funding for religious schools and students attending those schools. Indeed, this was despite Justice Breyer’s concern about the foregoing, in his dissenting opinion.
The reasoning of the majority opinion of the Court is cogent. It analyzed the tension between two aspects of the First Amendment to the Constitution, one known as the Establishment Clause and the other known as the Free Exercise Clause. Both are embodied in the provision of the First Amendment stating: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”. The provision is applied to the States by virtue of the Fourteenth Amendment.
The Establishment Clause is designed to prevent the establishment of a state religion.
The Free Exercise Clause is intended to protect religious observance against unequal treatment and against laws that impose special disabilities on the basis of religious status.
The nature and extent of play between these two seemingly conflicting requirements has been the subject of a number of cases. The Court noted that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs. Thus, as the Supreme Court previously determined, in the Trinity case, churches could be included in playground resurfacing programs. On the other hand, the Supreme Court also previously decided, in the Locke case, that the Washington State government funded scholarship program, which prohibited a student using it to pursue a devotional theology degree that prepared the student for a calling as clergy, did not violate the Free Exercise Clause.
It is important to note that the State scholarship program in the Locke case did not discriminate against the student using the scholarship to attend a religious college, per se, which was permitted. Rather, it was only because the scholarship was specifically used to obtain a particular degree enabling the student to become a pastor that there was a Constitutional issue. In essence, specifically funding the training of clergy and, in effect, creating a state-sponsored clergy was deemed inappropriate under the Establishment Clause.
The distinction is critical to understanding the Court’s view in the recent Espinoza decision. As the Court notes, there was no problem with funding scholarships to be used at pervasively religious schools that incorporated religious instruction throughout their classes.
The Court went on to say that, in general, it was also inappropriate to disqualify otherwise eligible schools and students from receiving a public benefit, solely because of their religious character. This kind of State action was, in effect, presumed to violate the Free Exercise Clause, under the strictest scrutiny test adopted by the Court. Indeed, as the Court also noted, it would take interests of the highest order, meeting the most stringent standards and narrowly tailored in pursuit of only those interests, to have any chance of passing Constitutional muster.
School choice: A lesson from the Torah
School choice is a critical option that parents should have in order properly to bring up children; each in accordance with their needs and strengths. The Bible (Genesis 25:27) alludes to this in the upbringing of the twin boys Jacob and Esau, by referring to the fact that the boys were raised together. Rav Samson Raphael Hirsch, in his commentary on the Biblical Verse, points out that this was a fateful error. Instead of educating the boys together, using the same pedagogical techniques, each child should have received an education best suited to their individual natures and needs (Proverbs 22:6).
Rav Hirsch explains how the goal of a Jewish education is the same for all children. However, the ways of accomplishing it are as manifold and diverse as human character traits and paths of life. He vividly presents how children can react differently to the same educational methods. He notes that the surest way to court disaster was sending Jacob and Esau to the same school, forcing both to have the same habits and hobbies and enrolling them in the same academic track, designed for those interested in pursuing a studious, sedate and meditative life. What may be appropriate and beneficial for one child may be extremely harmful to another.
Esau could hardly wait to throw away those old books. He was leading a separate life, behind the back of his parents, which he had learned on the streets, without the benefit of parental input, guidance and perspective. In stark contrast, Jacob had to be motivated to go out into the world and not just sit in the tent, glued to his seat, studying. This did not mean that the boys did not have some strengths and skills in common. After all, both a hunter like Esau and a scholar like Jacob needed focus, patience, skill and knowledge. Indeed, as Rebecca foresaw, Isaac eventually recognized and Jacob was to prove, in his own life’s journey, he was every bit as capable of succeeding as a businessman, warrior and progenitor of a nation.
Nevertheless, Jacob and Esau shouldn’t have been together in the same classroom, subjected to the same routines and taught in the same manner. The challenge was to find a way to harness each of their respective character traits and sublimate them in service of a higher purpose.
Religiously Oriented Schools
The concept of a universal Yeshiva educational system is ancient in origin. The Talmud (BT Bava Batra 21a) describes the first such system was established in Israel by Yehoshua ben Gamla, who, as Rashi notes, was a Kohen Gadol in the Second Temple period.
Historically, religious oriented schools were also an integral part of the educational tradition of the United States. Attempts were made to curtail the availability of a parochial school education in the late 1870’s, including the failed Blaine amendment to the Constitution. However, as the Court noted, in the Espinoza case, parents have the absolute right, protected by the Constitution, to send their children to a religious school for their education. The Court went on to say that while a State could decide to fund only its own public school system and not fund any other school choices; nevertheless, once it determined to fund other school programs, then it could not discriminate against a religious one.
Thus, whether it’s funding of charter schools, vouchers, scholarship programs, tax credit or other benefits, religious elementary and high schools, like Yeshiva Day Schools and the students attending them may not just be excluded; it’s a Constitutional mandate. As noted above, the fact that a school is pervasively religious and religious instruction is incorporated throughout the classes is irrelevant. What is relevant is that these types of schools only grant ordinary elementary and high school diplomas. They are not religious institutions of higher learning solely dedicated to granting an advanced degree investing the student with the authority to serve as clergy.
The Supreme Court has enabled a variety of educational choices, including religious orientated schools like Yeshiva Day Schools, to be genuinely equally protected. Hopefully state and local governments will fully embrace this opportunity. It’s time to enfranchise all students and parents, by funding a full range of true educational choices.
Leonard Grunstein, retired attorney and banker, founded and served as Chairman of Metropolitan National Bank and then Israel Discount Bank of NY. He founded Project Ezrah and serves on the Board of Revel at Yeshiva Univ. and the AIPAC National Council. He has published articles in the Banking Law Journal, Real Estate Finance Journal and more..
