School-based religious freedom conflict bubbles up in N.Y.

Written by William C. Duncan

June 3, 2022

In the past half century, religious liberty lawsuits have become more common. One reason for the change is the increased legal regulation of a wide range of public and private endeavors. This regulatory expansion makes it more likely that people of faith and religious organizations will be faced with a conflict between a regulation and their exercise of faith.

In other words, the more highly regulated an activity, the more potential for conflicts.

That is probably one reason so many religious freedom disputes arise in a school setting, where the government is highly involved. The two remaining religious freedom cases in the current U.S. Supreme Court term both arise in the context of schools. One raises the question of whether a school can fire a coach for praying on the school’s football field after the game. The other raises the question of whether a student attending a religious school can be considered ineligible for tuition assistance.

Though getting far less national attention, a school-based religious freedom dispute is brewing in New York as well.

The New York State Board of Regents just finished receiving public comments on proposed regulations governing K-12 private schools, including religious schools. Since 1895, state law has required students who do not attend public schools to be given “substantially equivalent” instruction to that provided in public schools. The new rules would try to quantify this inherently subjective standard.

Although the rules are an improvement over stricter regulations proposed a few years ago, the regulation still poses threats to the work of religious schools. An analysis of the current proposal by an eminent religious liberty scholar and a vice president of the Union of Orthodox Jewish Congregations of America explains that “the proposed regulations need significant work if they are to correctly balance the values at the heart of religious education.”

The authors point to three areas of concern:

  1. “The proposed list of required areas of study goes beyond general subjects to include courses in physical education and ‘kindred subjects,’ patriotism and citizenship, highway safety and traffic regulation, and fire and arson prevention.” This raises the possibility that regulators in the future will “simply continue adding to this list” – perhaps adding subjects that might create conflicts with the sincerely held beliefs of religious schools.
  2. The proposal would allow “persons considering themselves aggrieved” to appeal directly to the commissioner of education rather than leaving enforcement to government officials. This could lead to vexatious complaints, and Jewish schools in particular worry that “it opens the door to major abuses by those hostile to Jews or their yeshivas [traditional Jewish schools].”
  3. The rules cannot be appropriately implemented without “accreditors and evaluators sufficiently familiar with the distinctive qualities of Jewish education to properly assess Jewish schools for substantial equivalency.” For instance, evaluators would need to be sensitive to “the central feature of Jewish day schools – their dual curriculum – which includes both Jewish studies (such as the Bible and Talmud) and general studies (such as math, science, and English language arts)” integrated in the curriculum.

Tens of thousands of letters have been sent by religious schools in opposition to the rules as currently written. The government is set to vote on the proposal in the fall.

Like most of these conflicts, a good-faith effort to respond to the constructive criticisms of the religious schools and their supporters could allow the schools to operate consistent with their beliefs and preserve the state’s valid interest in ensuring students receive an appropriate education. Hopefully the involvement of parents and schools in the process will encourage that result.

More Insights

Connect with Sutherland Institute

Join Our Donor Network