Judge Rules against Yaffed; Felder Amendment Stands; Threat Against Yeshivos Still Looms

A recent District Court ruling struck a blow to Yaffed and dismissed a suit they brought against government officials over a recent amendment to the State’s education laws.

The lawsuit challenged the recently enacted Felder Amendment, named for its sponsor, NYS State Senator Simcha Felder. The lawsuit, brought by Young Advocates for Fair Education (Yaffed), claimed that the Felder Amendment should be struck down. Yaffed’s legal papers argued that it is unconstitutional for government to credit yeshivos for the learning that occurs during the limudei kodesh portion of the school day.

Yaffed claimed that it was harmed by the Felder amendment, and therefore had standing to challenge it, because “it has spent significant effort opposing the amendment, both in this court and in other venues, and thereby shifted valuable resources away from its traditional advocacy and education efforts.”

District Judge I. Leo Glasser, however, rejected this claim. In his words, “if the court were to accept this argument, it would be difficult to conceive of a case in which an organization or individual would not have standing… If any plaintiff with a strong objection to a statute could manufacture standing by spending time and money opposing that very statute – and then arguing that that time and money was itself an injury – there would be no real constraint upon standing at all, except perhaps the size of the plaintiff’s bank account.”

Although Yaffed’s lawsuit was dismissed on jurisdictional grounds, the decision was certainly a setback for Yaffed and its overall goal of undermining the autonomy of yeshivos.

Judge Glasser cited numerous times an amici brief submitted by yeshiva advocacy groups and detailed the imperative of religious parents to send their children to yeshivos and the unique role that yeshivos play in fostering and sustaining the religious community.

“Legal formalities aside, it is apparent that the real question in this case is how to balance two competing values,” the judge wrote, “both of which must be cherished in a free and democratic society, but either one of which, if allowed to expand to its logical conclusion, would swallow the other.”

The judge then proceeded to talk about the right of every child to a “sound basic education”, while also maintaining the “liberty of a parent to direct their child’s education in a manner that safeguards their cultural, religious, and linguistic identity.” The judge cited a unanimous supreme court ruling that “the child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

The judge cautioned that “an excess of legal formalism when confronting such ancient questions risks wrenching the law from the intuition and common sense of man.” He added that “the courts intention in alluding to these questions are not to resolve them, but to note only that they are profoundly difficult”. With this backdrop, he continues, these “prudential considerations” are a “powerful argument in favor of enforcing the standing requirements rigorously”.

Basically, while the case was dismissed due to Yaffed’s lack of standing, the education debate prompted the judge to drive a hard line on the standing requirements.

While rendering his decision, the judge cited the amicus brief submitted jointly by Agudath Israel of America, Parents for Educational and Religious Liberty in Schools, Torah Umesorah, National Society for Hebrew Day Schools, and United Jewish Organizations of Williamsburg.

In one section, the opinion recounts that:

“For parents who choose a traditional yeshiva education for their children, it is an important pillar of continuity within the Hasidic community, assuring that their beliefs will be reliably passed on from one generation to the next, and instilling an invaluable sense of Jewish identity and belonging,” the judge quoted in his ruling. Later, he quoted another section of the amici brief, “Proponents argue that these schools are ‘the primary vehicle responsible for inculcating Jewish values, Jewish learning and Jewish living, are responsible for the rebirth of the Jewish community out of the ashes of destruction in Eastern Europe, and are what today ensures and allows for the continuity and growth of the Jewish community in New York and around the country.’”

Ironically, Yaffed had attempted to deny the yeshiva advocacy groups the right to file the amici brief, claiming them to be a non-relevant party. In the end, it was Yaffed who was deemed by the judge to lack standing on the matter.

Yaffed, and its founder Naftuli Moster, have long been campaigning against the secular education levels in yeshivos. The recently released NYSED guidelines decried by rabbonim as “draconian, outrageous, and immediate” is seen as a result of this group’s so-called activism. Ironically, although the Felder Amendment outlined mandated subjects and gave education officials more control of yeshiva curriculum than previously, Moster still saw it as a confrontation to what his organization stood for and challenged the amendment in court.

Yaffed solicited and received an amicus brief from Footsteps in support of its claims. Footsteps, which shares board members with Yaffed, describes itself as an “organization devoted to assisting individuals attempting to leave their ultra-Orthodox Jewish communities.”

(While on the subject of associations – it should be pointed out that Moster was the guest speaker last February at NYC Atheists, an organization extolling the beliefs its name connotes, on the subject of “Does Religion Have the Right to Deprive a Child of a Basic Education? – My Fight Against the Hasidic Yeshivas,” where he spoke about the subject and the broader implications for atheists.)

It is important to note, though, that the threat against yeshivos stemming from the new NY State education guidelines remains as strong as ever, unaffected by this week’s ruling. This point was accentuated in a statement put out by Agudath Israel.

“Agudath Israel must make clear that while this victory is welcome, it does little to immediately help New York yeshivos,” it reads. “Inspections of yeshivos for ‘equivalency’ to public schools are scheduled to begin within months or weeks. These inspections are based on the authority of the New York State Education Department, not the Felder Amendment. Inspectors will be using official NYSED Guidance, which mandates teaching visual arts, theater, media arts, career development, occupational studies, physical education, family science, consumer science, patriotism, tolerance, worthy uses of leisure time, and more. Subjects must be taught for a substantial number of hours per day. The penalty of noncompliance is severe. As this is new territory, significant questions as to how these requirements will be implemented remain. In sum, it represents a radical, and in our estimation dangerous, alteration in the relationship between government and private schools, and is unprecedented in US history.”

The statement concluded that “Agudath Israel is continuing to press our state officials to encourage interaction with private schools in a manner that enables students to emerge with a sound education but is also respectful of a long history of religious rights, and healthy regard for parents’ right to choose the school they feel is right for their child. As we do so, we urge the continued engagement of our yeshiva community on this issue, as it continues to present significant challenges to the autonomy of our yeshivos.”