21st February 2024

Fifty years ago, my wife and I left Pittsburgh for New York. We had a lovely home and nice neighbors in Pittsburgh, and I enjoyed my work as a law school professor. What we lacked—and what New York City could provide—was a school that could give our children a Hasidic yeshiva education. We’ve always known people who considered our educational choices for our children unusual. The New York State Education Department (NYSED) now wants to make such choices illegal. New state regulations for private schools prohibit providing instruction in core subjects in languages other than English. The regulations threaten parents who make the same choices that my wife and I made with criminal sanctions and financial penalties.

As with nearly all yeshivas, the schools we chose for our children emphasized the study of Jewish texts, history, ethics, and values. The Talmud is written primarily in Aramaic, while its main commentaries are in Hebrew. The Bible and its commentaries are also in Hebrew. In keeping with the Hasidic traditions in which my wife and I were raised, we chose schools where those lessons were delivered in Yiddish. New York State now declares that none of this counts as education.

In one form or another, I have spent virtually my entire life in educational institutions, beginning as a yeshiva and rabbinical school student, then as a college and law school student, and, since 1966, as a law school professor. Two distinct elements set a Yeshiva education apart from traditional schools, and, in my experience, make them superior to such schools. First is rigor: the length of the school day, the depth of the curricular material, and the almost-Socratic method employed even in yeshiva elementary schools provide students with valuable training across many adult disciplines and professions. Students learn to analyze texts with precision. They learn how to analogize and how to recognize false lines of logic. A yeshiva education provides students with critical analytical skills that far surpass those attained by students at traditional schools.

Second is ethical and moral development: yeshiva education helps develop and transmit cultural identity, traditions, and cohesion. It not only fulfills these important educational goals but also meets the mandates of the New York State Culturally Responsive-Sustaining (CR-S) Education Framework, which the state adopted in 2018. In NYSED’s own words, the framework “helps educators create student-centered learning environments that affirm racial, linguistic and cultural identities and prepare students for rigor and independent learning.”

This is precisely what Yeshivas do. Teachers have an intimate knowledge of and respect for students’ culture and communities. Yeshivas are intentional in their use of texts and materials aligned with the cultural and linguistic values of the families and communities they serve. Yeshivas have been providing this type of education since well before CR-S theory was developed. They demonstrate how to draw on students’ cultural knowledge and support student learning within the boundaries of family and community cultural values and belief. NYSED should be pointing to yeshivas as a model to be emulated, not singling them out for punishment and derision.

For well over a century, New York education law has required that students enrolled outside of public schools must receive instruction “substantially equivalent” to that given to their peers in the city or district’s public schools. The state government permits New York public schools to teach classes in languages other than English and actively encourages dual-language learning. Some public schools even offer a 90-percent-to-10-percent model, in which a greater percentage of the instruction is in a foreign language. For parochial schools, however, an English-only rule now applies. The state’s new private school regulations refuse to consider or credit yeshiva classes taught in any language other than English. The new regulations provide that a substantial-equivalency determination will turn, in part, on whether “English is the language of instruction for common branch subjects.” Non-public schools will not be permitted to maintain split-language programming, in which students receive non-English instruction in such subjects.

New York City public schools alone run more than 200 dual-language programs. These are not meant for students who need instruction in English as a Second Language, but rather for students who want “the opportunity to become bilingual, biliterate, and bicultural.” NYSED touts these programs as beacons of success in educational and cultural diversity and sensitivity. Yet it threatens yeshivas and yeshiva parents trying to do the same for their students in the languages of their culture.

A lawsuit filed last fall challenged the new regulations for this double standard. NYSED responded with an affidavit from the education commissioner asserting that a single rule applies to both public and private education. This is demonstrably false.

On November 2, NYSED held a training for local school districts charged with implementing the regulations. David Frank, previously the education commissioner’s chief of staff who now oversees the Office of Religious & Independent Schools as assistant commissioner for education policy —making him the senior NYSED official overseeing private school education in New York—led the instruction. During a question-and-answer session, a school district official asked Frank: “Even in our public school bilingual programs, we often teach Math or Science or Social Studies in a language other than English. . . . So I assume, if we do that in our public schools, that would be comparable in our non-public schools. . . .  So I am a little confused about that [the English-language instruction requirement] as a criteria.”  Frank responded: “So that provision of the instruction in the core subjects being taught in English really pains me. I don’t think it is educational best practice . . . this is one difference between the substantial equivalence regulations and what happens in district [public] schools . . . if you do go to a school where they say we have great history instruction and it’s actually happening in the morning in our Talmudic class, and you go to see it and it is in Aramaic, that would not qualify under the substantial equivalence requirements.”

Frank’s candor in admitting the double standard is refreshing—but the double standard remains. Even more rankling is the singling out of the Talmud as a text that can’t be used to satisfy the state’s educational requirements. The Talmud is unique in the breadth and scope of the subjects and disciplines it encompasses, as well as the subtlety and depth brought to its study. Harvard scholar Harry Austryn Wolfson described Talmudic study as “the application of the scientific method to texts.” In 1903, Marcus Jastrow’s Dictionary of the Talmud explained: “The subjects of this literature are as unlimited as are the interests of the human mind. Religion and ethics, exegesis and homiletics, jurisprudence and ceremonial laws, ritual and liturgy, philosophy and science, medicine and magics, astronomy and astrology, history and geography, commerce and trade, politics and social problems, all are represented there.” And yet this is the text that NYSED has chosen to single out as insufficient for the education of schoolchildren.

As an educator, I can tell you that this is bad policy. As a parent who chose yeshiva education for my children, I can tell you that it is a heavy-handed bureaucratic overreach. And as a law professor, I can tell you that it is unconstitutional.

Don’t take my word for it. Read what a unanimous Supreme Court ruled nearly a century ago in Pierce v. Society of Sisters: “A child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Almost a half century later, in Wisconsin v. Yoder, the Supreme Court recognized the “fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.”

This is not the first time that NYSED and the Board of Regents have targeted the Jewish Studies curriculum, the cornerstone of yeshiva education. More than 80 years ago, the Board of Regents adopted the following resolution: “Voted, That private or parochial schools that operate with a program providing a session carried on in a foreign language during the forenoon, with only an afternoon session in English, be advised that such practice violates the compulsory education law.”

The response that the yeshivas submitted to that long-ago resolution remains relevant to the regulations that NYSED is now implementing. It included arguments with these headings: “Experience shows that instruction in a foreign language to children at an early age is not injurious to the health, morals or understanding of the ordinary child;” “The State may not prohibit the teaching of a foreign language to children of elementary school age;” “The State may not prohibit a parochial school from teaching any subject in a language other than English.”

NYSED’s continuing obsession with yeshivas teaching the Talmud, Tanach, and other Jewish texts suggests that it is more concerned with our success in raising generations of Jewishly educated children than it is with educating Jewish children in secular subjects. 

Despite New York State’s interference, I am confident that the Jewish community will maintain its emphasis on providing children with a yeshiva education steeped in the texts and teachings of the Jewish people. That is because education, and especially Jewish education, means everything to us. As the late Chief Rabbi and Lord Rabbi Jonathan Sacks explained:

For Jews, education is not just what we know. It’s who we are. No people ever cared for education more. Our ancestors were the first to make education a religious command, and the first to create a compulsory universal system of schooling—eighteen centuries before Britain. The rabbis valued study as higher even than prayer.

The Egyptians built pyramids, the Greeks built temples, the Romans built amphitheaters. Jews build schools. They knew that to defend a county you need an army, but to defend a civilization you need education.

New York’s new private school regulations require parochial school students to receive instruction in the history, purpose, meaning, and effect of our state and federal constitutions. Had the education bureaucrats bothered to consult those documents, they would not have prohibited instruction in the language and texts that have sustained Jews for millennia.

Photo by John Nacion/SOPA Images/LightRocket via Getty Images

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