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Jewish World Review July 7, 2000 /4 Tamuz, 5760

Jonathan Tobin

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Separation Anxiety

Latest High Court ruling raises the stakes in debate over funding for Jewish education -- RECENT DECISIONS by the U.S. Supreme Court may have a huge impact on the future of American education. But the organized Jewish community is just waking up to the fact that the court’s decisions may be just as significant to the future of Jewish education.

This principle was illustrated by the decision in February of the Jewish Council for Public Affairs (JCPA) to take a stand on the issue of church-state separation in a court case that could affect the future of educational institutions such as Jewish day schools.

The group, which is the representative umbrella organization of Jewish community relations councils and affiliated agencies, democratically voted at their annual plenum to oppose plans that would provide taxpayer funds for items such as computers that could be used in private or parochial schools for nonsectarian purposes.

The question is, now that the courts have ruled against their side in the case, how will Jewish groups react to this potential sea change in American law? As the courts move away from the liberal ideology embraced by most of the organized Jewish world, there are serious questions that Jewish activists must answer.

Namely, what will we do about funding our own parochial schools?

The case, Mitchell v. Helms, concerned the challenge to a Louisiana public school district’s use of federal education aid funds to provide computers for religious schools. A federal appeals court struck down the aid to parochial schools because it believed that providing educational materials other than textbooks constituted an “establishment” of religion as prohibited by the First Amendment. The appeals court was applauded by the JCPA, which joined a friend of the court brief submitted in opposition to the Louisiana district.

But last week a 6-3 majority of the U.S. Supreme Court struck down the lower court’s decision. Most significantly, four of the justices, Clarence Thomas, Antonin Scalia, Anthony M. Kennedy and Chief Justice William Rehnquist, signed onto an opinion penned by Thomas that may have far-reaching effects.

Thomas wrote that government programs that aid religious schools were constitutional if the aid was based on “the principles of neutrality and private choice” and, thus, offered evenhandedly “on the same terms, without regard to religion.”

Thomas’ opinion, which spoke for the plurality of the court, was nothing less than a legal rationale for school choice or vouchers, an idea bitterly opposed by the official voices of the Jewish community.

Of course, voucher opponents need not completely despair. A concurring opinion, written by Justice Sandra Day O’Connor on behalf of herself and Justice Stephen Breyer, did not join Thomas in explicitly legalizing choice.

But only one of them, or a new justice appointed by a future president (such as current front-runner George W. Bush, who favors school choice), would be needed to tip the balance.

Following on the heels of the 1997 Agostini v. Felton case — which allowed public school districts to send teachers into parochial schools under a federal program to provide remedial classes — the decision is another blow to the cause of the strict separationists who wish to erect a wall between religion and state so high that no public assistance would be permitted to support private sectarian schools. Indeed, had the court gone the other way and expanded restrictions on government aid to religious schools, then Jewish day schools might have faced financial ruin.

Yet, as Thomas noted, “Nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs.”

Ironically, as Justice Thomas’ opinion stated, "hostility to aid to pervasively sectarian schools has a shameful pedigree." He was referring to the prejudice against Catholicism in 19th-century America that forms the historical origin of opposition to aid to religious schools.

Though Thomas' history is accurate, this must seem odd to those secular Jews today who believe that the only thing protecting them from the tyranny of the non-Jewish majority is rigid separationism. But, as Thomas argued, allowing parents to spend their taxpayer dollars to educate their children in the school of their choice, even if it is a religious school, is not the same thing as those breaches in the wall that are clearly unconstitutional and a threat to minorities, such as state-mandated sectarian prayers in public schools.

But no matter the outcome of the vouchers debate, Jews are still left with the dilemma of how we are going to adequately fund our own day schools. Experts agree that the Jewish future in this country is going to be based on the success or failure of Jewish education. The best resources available for this purpose remain the growing number of day schools. But it is a fact that bears repeating that these schools are simply too expensive for most middle-class Jewish families.

Increased funding from federations has helped the schools survive, but it is not anywhere close to creating a system of schools that are available to most ordinary Jews. Instead, what we have created is a system of Jewish education that is wide open to the wealthy but effectively excludes the middle class.

We need to keep asking ourselves how a community that prides itself on democratic principles can permit this to continue.

Some doubt that the Jewish community could ever raise enough money to create a real Jewish educational safety net in the same way we have with social services.

Professor Jack Wertheimer of the Jewish Theological Seminary said recently that an endowment of $4 billion is needed to create a program, which itself would barely make a dent in the costs of day-school tuition. Since he believed that was impossible, he has said that Jews must look to more indirect government funding, via either vouchers or an expansion of current aid programs.

Given the political realities of modern American Jewry, a radical realignment of Jewish communal funding priorities to establish a Jewish educational safety net appears to be impossible. But the defeat of the strict separationists in Helms v. Mitchell may mean that the day is soon coming when Wertheimer’s argument of necessity may be put to the test.

At the same time, Jewish opposition to government programs that aid day schools, as well as to vouchers, is a steep obstacle to such funding. Thus, as things stand today, Jewish communal politics are set up to ensure that day schools will fail to educate as many Jewish youngsters as possible.

Our choice is stark: We can hold onto liberal separationist ideology and then raise and allocate the funds necessary to make day schools affordable to all Jewish families. Or, we can look to the government to do more to help us do what we must.

Then again, we can also continue to stick with an unacceptable status quo and do nothing to create more educational opportunity. At present, much of our communal leadership is following the last option.

And that is a scandal.

JWR contributor Jonathan S. Tobin is executive editor of the Philadelphia Jewish Exponent. He was the recipient of the American Jewish Press Association's highest awards in two categories: First Place in the Louis Rapoport Award for Excellence in Commentary and Editorial Writing for his column "Israel's China Syndrome -- and Ours" and First Place for Excellence in Arts and Criticism for his column "Jewish Art, Jewish Artists." The awards were given to Mr. Tobin at the AJPA's 2000 Simon Rockower Awards dinner at Washington D.C. on June 22, 2000. Let him know what you think by clicking here.

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