The Court strikes again

Last week’s declaration by the Israeli Supreme Court that beginning in the 2007-2008 school year the state may no longer fund yeshivos ketanos in which there are no secular studies constituted the latest salvo in the Court’s effort to eliminate by judicial fiat government funding of the primary chareidi institutions.

Nearly four years ago, the Supreme Court ruled, that the Education Ministry must impose a core curriculum on chareidi elementary schools that accounts for 75% of the school day. And last week, the Court went beyond the position of the Education Ministry and ruled that where there is not some level of compliance with the core curriculum requirement, the Education Ministry cannot continue funding, even at a reduced level.

In 1998, the Supreme Court ordered chareidi youth groups to return to the Education Ministry all monies that they had received after the Education Ministry, then headed by Meretz, drafted new criteria limiting eligible youth groups to those which "educate their members in the world view of Judaism and Zionism . . ., and to view army service or parallel national service as an obligatory value." Those regulations were drafted with the specific intent of excluding chareidi youth groups after an Education Ministry survey of membership in youth groups revealed that Bnos Agudat Yisrael was receiving only one-quarter of what it should have been under existing regulations, and the largest secular youth movements were receiving far more than they should have. (Attorney-General Michael ben-Yair ruled that the new regulations could not be applied to Arab youth groups, just chareidi ones.)

These cases serve as prime examples of the Supreme Court’s animus towards the chareidi community. In the youth group case, for instance, the Court did not inquire how the secular youth groups were exposing their members to the "world view of Judaism," and it is inconceivable that it ever would. Even what is often described as a post-Zionist Supreme Court, felt confident enough to define Zionism and determine that chareidim do not fit the bill but that other youth groups do (presumably including Arab ones).

In last week’s decision, the Court lectured the Education Minister that budgetary allocations are state funds and the Minister has no right to dispense them in any fashion that may strike her fancy. The clear implication of those words, in the context of the case, was that in the "Jewish state" there is no conceivable public purpose for the funding of an intensive Torah education.

The Court quoted at length from the Education Act of 1953, which enunciates a long laundry list of purposes of education, including instilling love of one’s fellow man, one’s nation, and one’s Land, and the desire to be a faithful citizen, to teach respect for parents, and one’s culture and language, the principles of Israel as a Jewish and democratic state; to teach Torat Yisrael and the history of the Jewish people, to develop personal character, expand the student’s horizons; to provide a knowledge of the different areas of knowledge and science, to foster personal creativity, to foster critical thinking, to nurture involvement in Israeli society, to instill tolerance for others, to know Jewish tradition.

These purposes were quoted at length, with minimal accompanying analysis of how they applied to the case at hand. Apparently, the Court understood it to be self-evident that Torah education does not fulfill these purposes, or at least that they cannot be met without a level of secular studies to be determined by the Court.

Yet anyone with the remotest familiarity with the Israeli education system would immediately recognize that chareidi schools are doing a far better job with respect to many of these purposes than their secular counterparts. Even in such areas as "democratic values," not to mention Jewish values, every survey of the attitudes of secular youth, indicates that they just don’t get it.

The fingerprints of judicial activism run riot were all over last week’s decision. The Court reversed nearly fifty years of state funding for yeshivos ketanos without the parties most directly affected – i.e., chareidi yeshivos ketanos and their students – even being represented before the Court. Indeed the whole lawsuit bore the markings of a collusive law suit, lacking even the minimum requirements of a "case or controversy" required by the American Constitution.

The Court stressed repeatedly that the petitioner, an organization of secondary school teachers, and the respondent, the Ministry of Education, agreed that it was illegal to fund secondary schools that do not teach a core curriculum. Yet that was the crucial issue in the case. In effect, the Education Ministry and petitioners cooked up a collusive law suit, with the willing and active connivance of the Supreme Court, to circumvent the political process.

Another clue to the Court’s judicial activism is its extensive citation of the lengthy preamble to the 1953 Education Law. Such preambles are traditionally understood to be exhortatory in nature, not to create enforceable legal rights. Let’s say, for instance, that the 1948 National Housing Act stated that its purpose was to help provide every American with decent, affordable housing. It is inconceivable that any court would interpret those words as allowing law suits against the government by those dissatisfied with the level of their housing. Similarly, it is inconceivable that any Israeli court would ever entertain a suit against the Education Ministry on the grounds that he or she had not been sufficiently educated in Jewish tradition, even though that is one of the purposes listed in the 1953 Education Act.

The main basis offered by the Court for its revolutionary order was a single sentence: "The funding of educational institutions that do not comply with the legal requirements and administrative regulations raises a suspicion of violating the principle of equality." Yet from the very beginning, Israeli funding of public education has recognized a wide variety of different categories of educational institutions: governmental schools, non-governmental but recognized schools, and those classified as "patur," which consists primarily of chadorim.

Each of these different categories of institutions has been funded on a different basis and at different levels, in recognition of the fact that they are providing fundamentally different types of education. Terms like "equality" are inapplicable to a comparison of apples and oranges. Furthermore, how can the Court at one and the same time praise the value of a secular education and claim that the government schools are discriminated against because they are required to provide this positive good while chareidi schools are not. By the Court’s own logic this is, at most, a case of affirmative discrimination.

Even le’ta’amam of advocates of changes in the chareidi educational system, the heavy-handed intervention of the Supreme Court can only be counterproductive. While the basic content of Torah education does not change over time, the forms do evolve, often times in response to the needs of the community.

In Eretz Yisrael, for instance, cheder education sixty years ago was almost exclusively in Yiddish, and that choice of the language of instruction was viewed as one of no little significance by many gedolim of previous generations. Today, however, Hebrew is the language of instruction in the large majority of chareidi chadorim and Bais Yaakovs, including even those of some of the major Chassidic groups. That change took place not because of outside pressure, but in response to certain internal needs of the chareidi community itself.

Similarly today, there is a growing recognition that knowledge of English can be a useful tool. When City Book, an American-based corporation, brought forty desperately needed new jobs to Kiryat Sefer, almost all the initial hirees were women who were fluent in English. The greater employability of those with knowledge of English has not been lost on Bais Yaakov seminaries, and there is at present a movement in many towards strengthening the level of English instruction.

But any changes taking place in the chareidi educational system, in response to changing circumstances within the community, will likely be put on hold if the government attempts to force those changes upon the community or to expedite the process. If there is one defining characteristic of the chareidi community, it is our determination to retain control over the education of our children. That determination only becomes stronger as the moral breakdown of the surrounding society becomes more and more evident.

Chareidim will not permit their children to be socialized into a homogenous national culture that we view as antithetical to our most fundamental values. Moreover, the chareidi community is one raised on a litany of Jewish martyrology over the millennia. Anything that smacks of coercion will only bring out the stiff-necked resistance that has served as the guarantor of the survival of Torah society until today.