A previous version of this article misstated the same of the organization for which Richard Foltin is a fellow for religious freedom. It is the Freedom Forum, not the Freedom Foundation. The article is corrected.
The rules apply to all private schools, religious and not, but they come in response to years of accusations that many ultra-Orthodox schools in Hasidic Jewish communities spend virtually all of their time studying Torah and Talmud, religious texts, leaving children without the education that state law requires they be offered in English, math, science and social studies, along with a handful of other topics.
State officials said they expect schools and local districts to work together to demonstrate schools are meeting the required benchmarks. That may prove optimistic given the yeshivas’ contention that the entire oversight process is invalid and their resistance to past investigations and questioning.
The new regulations, which are expected to be approved next week by the state Board of Regents, set up a fresh test of religious liberty and schooling, and people on both sides of the debate predicted the dispute will be appealed in court, possibly to the highest levels. They come at a time when a more conservative Supreme Court has recognized broad religious freedom rights.
Backers of the new rules say they represent important protections for children.
“Tens of thousands of children have been — and continue to be — denied a basic education,” said Naftuli Moster, who attended a Hasidic yeshiva in Brooklyn as a child. Frustrated by the substandard education he said he received, in 2012 he founded the group Young Advocates for Fair Education, or Yaffed, to press for investigations and enforcement.
A study by the group found that just under 20 percent of students in Orthodox Jewish schools were proficient in state math and English language arts tests in grades three to eight, compared to about 45 percent statewide, in 2019. In one-quarter of the 28 yeshivas investigated by the city, just 3 percent passed the state math test and fewer than 1 percent passed the English test.
Hasidic leaders in New York, defending their schools, have lashed out at the effort to monitor curriculums and lessons, calling it an infringement on the right to offer religious education as they see fit. Parents, they say, are entitled to send their children to schools that are consistent with their values and beliefs.
Pearls, a coalition of yeshivas in New York that has been vocal on this issue, described the regulation as an effort to “dictate” curriculum and faculty.
“Those who want State control can choose the public schools,” the group said in a statement on Friday. And sounding a defiant note, it added: “Parents in New York have been choosing a yeshiva education for more than 120 years, and will continue to do so, with or without the blessing or support of State leaders in Albany.”
Still, the statement did not refute the contention that these schools lack instruction in required subjects.
Critics say the lack of enforcement to date punishes children who are never taught basic skills such as how to read and write in English, do basic math or understand the larger world around them.
In 2019, after a long delay that city investigators found was tied to political interference, the New York Department of Education found 26 of the 28 yeshivas it examined were not meeting standards. (On Friday, a city spokesman issued a statement that was cool to the proposal: “We believe these regulations put an undue burden on our public school system. We will faithfully implement all NYSED regulations.”)
New York state’s efforts have also been drawn out partly because a court required the education agency to put these rules into formal regulations, as opposed to leaving them as mere guidance. Officials said they received some 350,000 public comments, most of them expressing “philosophical opposition” to state regulation of nonpublic schools.
“The regulation respects that parents have a constitutional right to send their children to religious schools, and that we respect the world views of those schools,” said Jim Balwin, senior deputy commission for education policy in New York. “Working together, we are seeking to ensure that all students will receive the education to which they are entitled.”
Since 1895, New York state law has required that children attending nonpublic schools be provided education that is “substantially equivalent” to that given to like-aged children at their local public schools. Private and religious schools are free to offer instruction on additional topics, but they must teach core subjects.
Moster said that in many elementary and middle schools, students at these yeshivas may have 90 minutes of secular education each day. In high school, girls learn some secular subjects, he said, but boys, who attend separate schools, study only ancient Jewish texts. All classes are conducted in Yiddish, with many students graduating without functional English even though they have lived in New York for their entire lives. They know little about secular history, and don’t even study the Holocaust, he said.
The logic, he said, is that secular learning is not needed to function and thrive in the insular Hasidic community. “Every boy is groomed and destined to be a rabbi of some sort,” he said.
Moster estimated that nearly 100 Hasidic yeshivas in New York are out of compliance with state standards. Other Jewish schools teach a broader range of topics. Jewish day schools, for instance, offer both religious and secular education.
The new rules are certain to face judicial scrutiny at a time when the Supreme Court has shown deference to the exercise of religion in schools. It ruled in June, for instance, in favor of a high school football coach who was disciplined for praying on the field after games. On Friday, Justice Sonia Sotomayor put a hold on a lower-court ruling that Yeshiva University in New York City had to recognize an LGBTQ student club.
“The doctrine has just shifted so much over the last few years that free exercise challenges are just always successful,” said Zalman Rothschild, a Bigelow fellow and lecturer at the University of Chicago law school who studies Hasidic education and constitutional law.
Rothschild himself is the product of Hasidic education and said he received minimal secular education. In elementary and middle school, it was offered at the end of the day, starting at 3:30 p.m., he said, and taught by inexperienced teachers who could barely speak English.
“Really, it was just babysitting,” he said. For high school, he attended a religious school in France where he said there were no secular studies.
Richard Foltin, a fellow for religious freedom at the Freedom Forum, pointed to the 1972 case of Yoder v. Wisconsin, in which the Supreme Court ruled in favor of Amish parents who cited religious beliefs in pulling their children from school after eighth grade in the face of a state law that mandated attendance until age 16.
“If there’s any community that’s comparable to the Amish, I’d say it’s the Hasidic communities of Brooklyn,” Foltin said.
Under the new regulations, nonpublic schools will have several options for demonstrating that they are offering a substantially equivalent education. Schools that are accredited by a recognized agency, for instance, or that participate in the International Baccalaureate program will automatically be considered in compliance.
But the Hasidic schools at the center of the controversy are not likely to qualify under the pathways offered and, if not, the local school districts will be responsible for ascertaining their compliance with the rules. State officials emphasized on Friday that districts have long been tasked with this responsibility under the law, though these provisions were ignored for decades.
“We think enforcement is necessary,” Moster said Friday. He said that yeshivas deemed to no longer be schools would lose funding that they rely on, “so that funding is itself the carrot and the stick.”
New York requires schoolchildren to receive instruction in math, science, English language arts and social studies, by a competent teacher and in English. They must also learn about patriotism and citizenship; the history and meaning of the U.S. Constitution, the Declaration of Independence and the New York State Constitution; physical education; health education regarding alcohol, drugs and tobacco (though not sex education), and injury prevention.
The number of students studying at Hasidic yeshivas has been growing at a clip. Even as total student population in New York state fell, enrollment in Jewish schools overall climbed 62.6 percent since 2000, the Manhattan Institute found in a 2020 report. Most of the growth has been in Hasidic schools, which educated more than 90,000 students in 2018, Yaffed reported.