With the enthusiastic support of The New York Times, New York’s Board of Regents has decided to take tough enforcement steps against publicly-funded Jewish elementary schools that serve the state’s ultra-Orthodox Chassidic community.

Most of the schools, they say, fail to provide even a minimal secular education, and they will lose state funding unless they augment their curricula in subjects such as English and math. The Regents have decided that without the prescribed secular education equivalent to what is legally demanded of the public schools, the haredi kids are destined to lives of poverty and state-supported welfare.

Community representatives have responded loudly and forcefully, decrying government interference with a system of religious education that produces a law-abiding citizenry. They cite many examples of material success by alumni of the allegedly flawed institutions. Their constitutional argument is sound—even if an ultimate resolution by a polarized Supreme Court is uncertain—because the Amish received a favorable Supreme Court ruling in Wisconsin v. Yoder (1972) exempting them from high school instruction.

The controversy seems destined for a legal showdown. Does the religious community’s free exercise of religion entitle it to continue to educate its children by the community’s own priorities at public expense?

New York’s regulators are taking an all-stick approach. Rather than offering a carrot to induce parents and students to learn what they lack in the yeshivah program, the Regents threaten to close the schools by ending the financial support they need to exist.

What is the Regents’ goal? If it is to improve the lives of the children enrolled in the haredi schools by teaching them the math and English that they will need to prosper in contemporary American society, government regulators and legislators might consider—as they have failed to do thus far—whether means other than threats could achieve the desired result.

The situation reminds me of the battle over educating learning disabled children in the Satmar Chassidic village of Kiryas Joel, in Orange County, New York.

I represented the village in Supreme Court litigation a quarter-century ago. Teachers who were not Chassidic or even Jewish, paid by the state of New York, had been teaching Satmar’s special needs children in the Kiryas Joel yeshivah buildings. This practice was terminated as unconstitutional by a 1985 Supreme Court decision.

The Satmar children were then transported to a nearby public school for government-funded special education, but this solution foundered because classmates tormented the Chassidic kids. The local school board rejected other proposed compromises. The stand-off resulted in several years of acrimonious litigation in New York’s courts—much like the court battles that are now likely to unfold.

A sensible accommodation broke the stalemate. With the blessing of then-Governor Mario Cuomo, the New York legislature enacted a law that created a public school district within the borders of Kiryas Joel. A “secular” school building was—and continues to be—the location of instruction for Chassidic children with learning disabilities. It services not only Kiryas Joel but also children from neighboring communities with Orthodox Jewish inhabitants.

The building has no mezuzah, and its teachers are racially diverse. The school’s superintendent, who happened to be Jewish but not religiously observant, was an expert in bilingual education, as were some of the teachers, so they could communicate in Yiddish.

Advocates of an impenetrable wall of separation between church and state initiated a constitutional challenge.

With three Justices dissenting, the Supreme Court ruled in June 1994 that the law creating a unique public school district for Kiryas Joel so that Chassidic children could attend a publicly-financed special needs school was an unconstitutional “fusion of governmental and religious functions.”

The New York legislature raced to rescue the school before it could be shut down. It amended the law to meet the standards expressed by two Supreme Court Justices who had cast the decisive votes. When even the amended law was challenged, the legislature again expanded the roster of communities that could invoke it.

As a result, the multi-year litigation over the constitutionality of a law designed as a religious accommodation ended. The unique school in Kiryas Joel has not been closed for a single day since it was created. Although the school structure is wholly secular, it is accepted by the Chassidic residents of Kiryas Joel as a permissible solution for their special needs children.

Even the most fervent opponents of the Regents’ proposals acknowledge that some haredi schools furnish so little secular education that some students lack skills useful for survival in today’s America. It is, however, an unacceptable breach of the independence that the First Amendment to the U.S. Constitution guarantees to religious institutions for the camel’s nose to penetrate the tent—for government authorities to inspect, weigh and direct what is taught at a religious school.

The Kiryas Joel experience is a model of how to reconcile both convictions. New York should offer voluntary supplementary secular public education within or near the Chassidic yeshivas at late afternoon or evening hours. Students could qualify if they or their parents affirm that religious observance commands their enrollment in religious schools that provide limited secular education. To be sure, the public treasury would be affected by the increased cost. The yeshivas would continue to be financed as they now are while the new supplementary schools would need additional appropriations. State money would not be wasted, however, on inspection and evaluation of the secular programs in the yeshivas and on interminable and costly litigation.

The supplementary schools would be staffed, just as the Kiryas Joel school is, by a racially and culturally diverse lineup of teachers. The entire student body would be observantly Jewish but the teachers of English, math, science and civics would not be limited by ethnicity, race or religion. The most productive hours of the day would be reserved for religious study. The school could recruit public school teachers who want to augment their salaries by teaching during after-school hours.

The decision on whether to enroll in this supplementary program must be left to the parents or, once they reach the age of independence, to the children themselves. Parents and children who choose to remain with only the full-day yeshiva program would be free to make that choice.

Such a program would be an accommodation for the religiously observant, something disapproved of by a Supreme Court majority 30 years ago but probably acceptable to most of today’s court.

Would the haredi community permit its children to attend classes taught on late afternoons or evenings on premises separate from the yeshivas and by teachers who are not devoutly Orthodox and may not even be Jewish?

The experience of the Kiryas Joel public school for special needs children is a precedent. The Satmar parents of learning disabled children have endorsed and populated the Kiryas Joel school since it was established and have vigorously defended it against those who want to close it down.

To be sure, haredi parents of a child who is learning disabled will more readily compromise religious principle and enroll their child in a non-traditional program than parents of a child who has no disability but is poorly educated in math or English. But before smashing the Orthodox community with a club and embarking on years of acrimonious litigation, the Regents and the New York legislature might consider more gentle persuasion.

Nathan Lewin is a Washington attorney with a Supreme Court practice who has frequently litigated religious liberty cases on behalf of Orthodox Jewish causes and has taught at the Columbia, Harvard, Georgetown and University of Chicago Law Schools.

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