America’s Public Education Regime Is Unconstitutional

David Benkof Contributor
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Liberals are saying Trump Education nominee Betsy DeVos “wants to take money away from public schools” by helping parents use taxpayer dollars for religious and other schools. But under the current system, the government unfairly forces many parents to choose between an expensive religious education and a free education that stymies their religious observance. Since practicing one’s religion without government interference is a constitutional guarantee, America’s public school regime is unconstitutional, and should be upended by the coming more-conservative Supreme Court.

This is not a column about vouchers or the other proposed plans for making America’s school system fairer. Instead, it’s about Orthodox Jews, one of the starkest examples of an American group that simply cannot send their children to public school while maintaining the free exercise of their religion.

Emphasis on the “free.” Jewish day school education is expensive, averaging $15,000 a year – which means an Orthodox Jewish family with three children pays more than half a million dollars from kindergarten through 12th grade, in addition to paying school taxes like everyone else. Liberals are always complaining that Christians are trying to “impose their values,” but what’s a bigger imposition than a half-million dollar fine (of sorts) simply for practicing your religion?

Well, one might respond, Orthodox Jews choose to keep their children out of public schools. Well, if you believe Orthodox Jews could send their children to public school K-12 and expect them all to remain fully Orthodox, you don’t know Orthodox Jews. One illustration is Orthodox parents whose circumstances make public school necessary, but find their children’s religious values in jeopardy. Some examples (names have been changed):

The Feldbaums have five children, the youngest with learning disabilities. Because local Jewish schools were unequipped to help little Menachem Mendel’s special needs, his parents sent him to the local elementary school for second and third grade, where he received excellent special education.

But religiously, it was a disaster. Menachem Mendel never got in the habit of saying brachos (blessings) over food at school, and soon stopped saying them at home, too. His mother told me he would sneak to the classroom bookshelf to read books not allowed in his home because they are contrary to Jewish values. Orthodox Jewish parents don’t just teach texts and beliefs. Orthodox parenting involves transmitting “Yiddishkeit,” the Jewish way of life. Public school made that hard with Menachem Mendel. “He lost part of his Yiddishkeit,” Mrs. Feldbaum told me. “And he will never get that back.”

Joshua had a similar experience at the public high school his parents reluctantly enrolled him in because they saw no real Jewish choices in their city. Joshua has no regrets about his public school experience, where he made lifelong Jewish and non-Jewish friends and felt accepted and welcome – but at the price of compromising his Jewish observance. “I broke Shabbos (violated the Sabbath) a lot, to be honest,” he said. “And when my friends went out they were always eating treyf (non-kosher food) and eventually I started to as well. I would eat everything. And because it wasn’t part of the school schedule, I did not pray much.”

Joshua’s Jewish life was crippled, and he’s totally OK with that. But his parents aren’t, and neither should you. If Joshua’s family lived in a city where they could have chosen a Jewish school, it would be both wrong and false to tell his parents they can always choose to educate their Orthodox children at the local public school for free.

Rabbi Miller also lives in Joshua’s city, and sent his children to a non-Jewish school as well. He said Orthodox kids in that situation have to deal with problematic curricular subjects and bullying over their clothing and practices, but the worst part involves the social components of the high school experience. For example, mixed dancing is forbidden to Orthodox Jews, for whom dating is generally focused on finding a spouse. Yet Orthodox students in non-Jewish schools can find proms alluring, despite the values they learn at home. Similarly, most high school sports teams play on Friday nights and Saturdays, which can put Jewish students in conflict with their faith – and ultimately with their parents.

Is it really right that some Americans must scrape and pay a huge portion of their income just to maintain their religion? Too many large Jewish families move to Israel with its free Jewish schools as the only solution to family tuition bills that can top $100,000 a year. Think about that: Americans going overseas just to practice their religion. Goodbye, Plymouth Rock.

Nor are Jewish schools too expensive for government subsidy. New York state pays about $5,000 more per public school student than the average day school tuition. And the government wouldn’t need to pay for an outstanding education for religious students, just an appropriate one. A parallel: under the Individuals with Disabilities Education Act (IDEA), public schools are required to provide an appropriate education for children regardless of learning or physical disabilities. But when the school cannot do so, the district is required to pay for an appropriate education at a private school. Public schools can rarely provide Orthodox Jews with an appropriate education.

“But the Separation of Church and State!” you might respond. Well, the Separation of Church and State means what the Supreme Court says it means, and within a few years the court will probably be much more sympathetic to religious freedom claims of all sorts. I’m suggesting they strike down the current secular public school regime as an unconstitutional restriction of the free exercise of religion.

But I’m not advocating a specific solution. If vouchers and educational savings accounts don’t pass muster with the public, maybe liberals and conservatives can work together to create something new that will meet the needs of current public school students as well as Orthodox Jews – and Mormons and Evangelicals and Catholics and Muslims and others who cannot properly exercise their faith with children in public schools.

If your response to learning that public schools block Orthodox Jews from staying Orthodox is “Tough – then they’ll have to pay for their own schools,” you’re proving my point. Anyone aware of the way public schools threaten Orthodox life but show no sympathy for the plight of people like the Feldbaums and the Millers are essentially approving of government pressure on Americans to let go of essential parts of their faith.

That’s unconstitutional. And the Supreme Court should declare it so.

David Benkof is a columnist for The Daily Caller. Follow him on Twitter (@DavidBenkof) or E-mail him at DavidBenkof@gmail.com.