Supreme Court Justice Elena Kagan raised the concern during a hearing Wednesday that New York state could be forced to fully fund yeshivas that offer little education in basic secular subjects like English or math as a result of a landmark case the court will soon decide.
At issue in the case is whether to allow the Catholic Church in Oklahoma to establish the nation’s first religious public charter school. If the court backs the Catholic school, it could pave the way for publicly funding Jewish schools across the country.
The court has a conservative majority of six to three. From their questioning of lawyers arguing on either side of the case, the majority of justices appeared open to the idea that excluding religious institutions from Oklahoma’s charter school system is discriminatory and unconstitutional.
Kagan and the other two liberals on the bench, meanwhile, expressed skepticism toward the proposed charter school, St. Isidore of Seville Catholic Virtual School.
Kagan, the court’s only Jewish justice, brought up Hasidic schools in New York while questioning St. Isidore’s attorney, Michael McGinley, about the implications of his argument. She wanted to know if he thought religious charter schools should be allowed to exempt themselves from curriculum requirements based on their doctrines.
“Let’s say we’re up in New York, and there’s a Hasidic community that has a yeshiva, and it’s a very serious yeshiva, and what that means is that almost all the instruction has to do with studying Talmud and other religious texts,” Kagan said. “Very little of it has to do with secular subjects. Almost none of the instruction is in English. Almost all of it is in Yiddish or in various, like, ancient Hebrew-Aramaic kinds of languages.
“Does New York have to say ‘yes’ even though that curriculum is super different from the curriculum that we provide in our regular public schools?” Kagan asked McGinley.
Kagan’s line of questioning comes as New York recently closed multiple yeshivas that were not abiding by a state law requiring all schools — private and public — to adequately teach basic secular subjects. The state’s crackdown is focused on Hasidic schools that critics describe in much the same terms used by Kagan in her example.
McGinley responded that Kagan’s scenario should not influence the court’s ruling in the St. Isidore case.
“You can’t take imagined hypothetical downstream questions and let them drive and justify front-end religious discrimination,” McGinley said, citing a series of previous cases concerning the First Amendment’s religion clauses.
Kagan replied that the nature of religion means conflict with secular authorities would become inevitable with the existence of religious charter schools. She also said states created charter schools in order to spur innovation within the typical public school context, and did not intend to begin funding religious education.
“And now you’re saying to that state, you know, yes, you have to go fund the yeshiva that I described; yes, you have to go fund the madrasa … if you want to have this program at all,” she said, referring to Islamic religious schools as well.
A ruling in the case could affect as many as 47 states that permit charter schools, which are publicly funded but privately managed. Some states, including New York, have caps that limit new charters as well as other kinds of restrictions.
Most American Jews, as a small religious minority in a majority-Christian country, have traditionally backed the principle of separation of church and state, and mainstream Jewish groups have historically fought to keep religion out of the public sphere.
Organizations representing Orthodox Jews, who almost universally send their children to religious schools, are an exception, and several of them have weighed in to support St. Isidore. Orthodox groups have also lobbied for other measures, such as tuition vouchers, that make religious education more affordable.
