Nathan J. Diament is the Washington DC-based director of public policy for the Union of Orthodox Jewish Congregations of America, and is an adjunct professor at American University where he teaches “Religion and American Public Policy & Politics.” A graduate of Yeshiva University and Harvard Law School, Mr. Diament was appointed by President Obama to serve as on the President’s Advisory Council on Faith-Based & Neighborhood Partnerships. Mr. Diament is a co-editor of Tikkun Olam; Social Responsibility in Jewish Thought and Law (Aronson Press, 1997) and writes on issues of religion and state, constitutional law, social policy and international affairs. In this article, he surveys legal and public policy issues regarding public financial assistance for day schools. An earlier version of this essay appeared in Jewish Action magazine in 2005.

For more than forty years, efforts to secure government support for day schools and yeshivot have been at the top of the Orthodox Jewish community’s public policy agenda. We have not been alone in this; the Catholic community as well as other population segments which utilize non-public schools have worked in coalition with us to seek such support. After these many years of effort, it is worth considering what has been gained, what remains hoped for and, most importantly, what can truly be achieved. In brief, while a single “silver bullet” solution that leaves the current structure of Jewish schools untouched but funds them, such as government funded school voucher program, is still many years away from reality, there are a host of other possibilities for public funding that can bring real near-term benefits to the Jewish community.

The state of the law

At the outset, we must recognize that there are significant legal barriers to wholesale government support for non-public schools, particularly religious schools, in the United States. The best known barrier has been the Establishment Clause of the First Amendment of the U.S. Constitution. This clause states, “Congress shall make no law respecting the establishment of religion or the free exercise thereof.” For many years, with non-Orthodox segments of the Jewish community urging it on, the Supreme Court understood this provision to bar government programs that directly aided religious schools. At the same time, programs that could be structured to deliver aid in a broad and/or indirect manner were permitted. So, providing bus transportation for all schoolchildren – including those attending religious schools – was ruled permissible decades ago, as was loaning secular textbooks and other instructional materials. More recently, the Court ruled in favor of state sponsored remedial and special education classes in religious schools as well as providing computers and other technological teaching tools to the religious schools. The Court has also looked favorably upon tax credits for educational expenses or financial contributions that are made available to a broad class of the population (i.e., all schools or parents, not just religious ones).

Thus, the Supreme Court’s jurisprudence in this arena evolved away from demanding “strict separation” of church and state. In fact, in 2002, the Court ruled a school voucher program in Cleveland, Ohio to be constitutional and not in violation of the Establishment Clause. This ruling was a capstone of the Court’s current understanding is that so long as a government benefit is awarded for a secular purpose on the basis of religion-neutral criteria, and it is left to the free and independent choices of individuals whether this benefit is ultimately used for religious purposes, the Establishment Clause is not transgressed.

But this is not the end of the story in the courts. Just because the federal constitution does not prohibit a school voucher program, or any other program which might aid religious schools, that does not mean that a state or county is required to provide such a program or benefit. For one example, see the Court’s opinion in the case of Locke v. Davey decided in 2004. Moreover, more than thirty states have in their state constitutions what are known as “Blaine Amendments” containing more explicitly restrictive language regarding public aid for non-public schools than the federal constitution. While these amendments have a sordid historical lineage, (see Diament, “Retrograde on School Choice,” The Washington Post, http://www.washingtonpost.com/ac2/wp-dyn/A47250-2002Aug21) they are the current resort of school voucher opponents who have turned to state courts to block such proposals of late. For example, Florida’s school voucher program is currently before that state’s Supreme Court on these grounds.

Despite this legal landscape, there are many programs that support non-public schools operating in various states that benefit our community. New York provides busing for students, loans secular textbooks and remedial education services. Ohio provides subsidies for the administration of standardized tests. Arizona, Minnesota and Pennsylvania are among those states offering a tax credit for various education related expenses or contributions. There are also federal programs, often administered by state agencies, which can benefit our community’s schools as well. These range from federal homeland security grants, to special education services for the learning disabled to excessive noise remediation for schools located near airport facilities. These programs are constitutional under existing precedents and materially benefit our community. They are not as “sexy” as a “silver bullet” solution such as vouchers, but they are more likely to assist our schools and families sooner. The challenge for our community raised by their existence is to intelligently harness their potential for our material benefit. That has more to do with politics than law.

The state of the politics

“Why can’t we pursue the ‘silver bullet’ solution of school vouchers?” you may ask. The answer is the simple political reality that the vast majority of families in the United States send their children to public schools. If you added up all the children in all the non-public schools in this nation, it would still be a miniscule percentage of the total school population. Thus, there is little political support for voucher initiatives which would reallocate funds that would otherwise support public schools in a wholesale fashion. (This fundamental reality is separate and apart from the great political power held by the labor unions which represent teachers and school administrators.) This is why, in large part, the nature of voucher proposals and their politics has changed from its initial broad based versions to programs designed to benefit inner city minority populations who are economically unable to relocate to suburban districts with excellent public schools (see Tierney, “A Chance to Escape,” The New York Times, June 7, 2005). There is no politically viable voucher proposal in the United States today that would benefit lower-middle income families, not to mention those better off.

Thus, in terms of seeking opportunities for government material, near term support for our schools, we must pursue opportunities to expand programs already in place and offer initiatives that do not pit our community and our non-public school allies against the public school sector. But lest one be disappointed, there are significant opportunities in this realm.

Charter schools – breaking new ground?

The foregoing discussion, as noted, was premised on the assumption that we are seeking the means to secure state funding for Jewish schools while keeping their basic structure and format unchanged. But if the community’s leaders and educators – and rabbinic leadership – are prepared to “think outside the box,” a new prospect for dramatically altering the day school affordability equation looms in the utilization of charter schools for the secular education of our students.

Charter schools are, essentially, public schools that are fully funded by the state but have autonomy as to curriculum, teacher hiring decisions and other key elements of a school. Charter schools may not be sectarian – they cannot teach religion as part of their curriculum nor restrict admissions to students of a particular faith. Unlike voucher proposals, expanding the presence of charter schools in the United States is something that, while still being opposed by the public teachers unions, has broader political support. President Obama is seeking to prod states to expand charter schools by offering billions of dollars in federal funds to states that do so, and Joel Klein, the chancellor of the nation’s largest public school system – New York City’s – is a vigorous advocate of charter schools.

There are two “Jewish charter schools” operating at this time – the Ben Gamla School in Florida and the Hebrew Language Academy in Brooklyn. Divorced from a vigorous program of meaningful religious studies, these schools are typical public schools in curriculum, with classes in Hebrew and Jewish history thrown in, and they have not attracted many students from the mainstream day school community. (See the discussion on charter schools in this journal. – ZG)

But it is possible to imagine a structure under which charter schools could be created to deliver the secular studies needs of the Jewish community in a manner that is more connected – by social and communal ties – to the privately funded provision of religious education. With secular education fully funded by the state, parents’ education costs would be cut in half, if not more.

In an area with multiple Jewish day schools, one can imagine “pooling” all the students into a central charter school that provides the secular studies while individual day schools would continue to provide their independent and ideologically distinct Jewish studies. Given that these charter schools would be public schools, there would be no way to exclude non-Jewish students or have a say over the social environment or the content of the curriculum.

Recourse to charter schools has, to date, primarily been discussed within the Orthodox community and some leaders (particularly from Agudath Israel in America) have voiced opposition to pursuing such a course. Beyond ideological objections, there are many detailed issues from regulatory compliance to pedagogic considerations to social challenges which would need to be considered. Parents would have to deal with two sets of schools administration, one in the day school and the other in the charter school, and the day schools may find themselves having to play a variety of unforeseen roles in the interaction with the charter schools and student life and behavior in them. (Imagine, for example, the complications of a day school student being bullied by his/her fellow day school students within the halls of the charter school.)

Within the system – a practical public policy agenda

All of the public support programs benefiting non-public schools, and more, listed in the first section of this essay exist in various states and localities today, but no single locality offers them all to its population. In other words, New York provides bus transportation for day school students but most other states – including many with Orthodox communities – do not; Pennsylvania provides a state tax credit for personal and corporate contributions to educational entities but New York and many others states do not. Our communities would benefit greatly from bringing existing programs from one state to another and, in most instances, such programs can be positioned in politically popular terms.

Education tax credits are an excellent example. As mentioned, Pennsylvania and several other states (Arizona, Florida, Illinois, Iowa and Minnesota) offer state tax credits for education related contributions by corporations to school scholarship funds. Corporations can contribute up to $100,000 to a scholarship fund and receive a 75% state tax credit, thus the contribution only costs the donor $25,000. Since being enacted in 2001, this program has generated tens-of-millions of dollars of contributions to such funds which have benefited both the public and non-public school sectors. It thus does not pit public against private in a zero-sum game of politics and it has delivered material benefits to that state’s Jewish schools. In fact, the Jewish Federation of Philadelphia administers the scholarship fund for the community’s schools in that city and the tax credit has enabled the Federation to increase its level of support for the day schools considerably. It empowers all schools to solicit funds from businesses large and small within their community on the basis of seeking investment in their school. In other states, such as Arizona and Minnesota, credits are offered to individuals who make such contributions or incur other education related expenses. Again, the political appeal of such a program is that it benefits the public sector and the non-public sector; it is a Talmudic zeh nehene vezeh nehene, a win-win approach, which is politically appealing. (Of course, once such a program is in place in a particular state, and material benefits are realized by a broad set of constituencies, coalitions can work to expand the level of benefit; i.e., raise the $100,000 tax credit to a $150,000 tax credit, etc.)

The issue of transportation is a similarly excellent example. While the two states with the largest day school populations – New York and New Jersey – provide this service to day school children alongside all other schoolchildren, many states do not. Maryland is such a state and the day school families of Baltimore and Silver Spring face challenge of either paying more than $2000 per child for private bus transit or disrupting their daily routine with carpools. Of course, since public school children already receive bus transportation we cannot present it as a benefit for all in those terms, but it can be presented in a manner that offers another generally popular benefit – reducing road congestion and pollution. If through providing transportation, or at least a subsidy, Maryland would reduce or eliminate the carpools that bring thousands of cars onto the roads, commuters otherwise on the streets of Baltimore and suburban Washington would benefit greatly.

The means of pursuit

The legendary politician Tip O’Neil famously said “all politics is local;” with regard to programs which support schools and education, nothing could be more true. Education budgets and regulations in the United States are primarily determines at the state and local government levels. It is thus necessary for the day school community to increase its efforts in cultivating relationships with local and state officials and building coalitions with local organizational and communal allies and interests. Today’s city councilman is tomorrow’s state assemblyman and the next day’s congressman. The Jewish community has learned and applied this lesson well with regard to pro-Israel advocacy; we have just as great an interest in doing so with regard to educational support, not to mention other issues.

The precedent value of a program which exists in another state or locality is considerable. Thus, to inform New York State legislators of the benefits of the Pennsylvania tax credit program in seeking its adoption in Albany is very useful. But it is not sufficient.

It is necessary for a community’s leaders to define an agenda of what programs or policies a local community wants implemented, educate the rank and file of the community about the agenda and then bring that agenda to officeholders who seek their support and hold them accountable for delivering on these issues or for failing to do so. To paraphrase Pirkei Avot, no politician can be expected to afford you benefit without expecting something in return; conversely, the day school community must hold those who represent us accountable for their positions on our most important interests – and support for our schools must be in the first rank.