The Constitution and New York’s Efforts to Control the Yeshivas

September 28, 2022 | Michael A. Helfand
About the author: Michael A. Helfand is an associate professor at Pepperdine University School of Law and associate director of Pepperdine’s Diane and Guilford Glazer Institute for Jewish Studies.

Earlier this month, the New York State Board of Regents approved a set of amendments to the educational requirements for private schools—written primarily with ḥasidic schools in mind. Michael A. Helfand considers the constitutional limits on the state’s ability to govern what happens in religious educational institutions:

New York’s rule requiring private schools to provide “instruction in mathematics, science, English language arts, and social studies that is substantially equivalent to such instruction required to be provided in public schools” is likely to withstand constitutional challenge even if that challenge is grounded in a combination of parental- and religious-liberty rights. And that’s because it will almost certainly be viewed as necessary to ensure students become full and productive members of a democratic society. Thus, while the Supreme Court has been sympathetic to religious-liberty claims in recent years, the need to provide citizens with educational basics is sufficiently weighty that it will likely overcome constitutional challenge.

At the same time, some of New York’s rules veer beyond these core objectives. For example, New York’s education law requires students to study “patriotism, citizenship, and human-rights issues,” including “the study of the inhumanity of genocide, slavery, . . . the Holocaust, and the mass starvation in Ireland from 1845 to 1850.” This sort of very particular curricular list, while undeniably providing important educational lessons, is far more vulnerable to constitutional challenge because it is less connected to the essential skills that typically justify limitations on parents’ 14th Amendment rights.

Maybe there’s a lesson in all of that. To the extent government officials impose only core educational requirements, they stand on strong constitutional footing. . . . But if government gets carried away, and moves beyond what is essential to that goal, its authority wanes—and the strength of potential constitutional challenges grows.

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