Orthodox Union Position Paper on Government Aid to Jewish Day Schools


UNION of ORTHODOX JEWISH CONGREGATIONS OF AMERICA

Policy Paper

Government Aid to Jewish Day Schools

 

Introduction

Education has long been a fundamental source of inspiration and engagement for the Jewish People.  Moreover, a basic level of Jewish knowledge has been a key to Jewish survival and our primary defense to the threat of assimilation.  Thus, the Orthodox Union is deeply committed to the priority and availability of Jewish education.

The Orthodox Union’s commitment is to all forms of Jewish education – both formal and informal.  The OU has invested considerable resources in and directly runs a range of informal education programs on secondary and post-secondary campuses as well as off-campus programs spearheaded by NCSY.  But as surveys have demonstrated, the mode of Jewish education which yields the deepest and longest impact in shaping committed Jews is a K-12 Jewish day school education.

The rising cost of Jewish day schools, which has accelerated in the recent years of the economic recession, has undoubtedly made Jewish day school less accessible for more Jewish families.  The Orthodox Union believes that parents should not stand alone in the challenge to provide their children with a day school education.  Therefore, the Orthodox Union supports an array of communal initiatives to make day school education more affordable for Jewish parents.

At the same time, for several reasons, elaborated below, the Orthodox Union believes it is appropriate and necessary for us to advocate for and secure increased aid from the public sector – at the federal, state and local levels – for our schools and/or the families who utilize them.

Since affordable education and broad school choice should be the priority of every strong society, the Orthodox Union believes that both Jewish day school parents and the schools themselves should receive support from all levels of government. Governments should institute broad school choice policies and stand by parents as they struggle to provide an education for their children.

Economic Fairness

The Orthodox Union believes that private Jewish full-day schools as a whole provide an excellent education to their students while, at the same time, saving local and state taxpayers billions of dollars each year.  Parents utilizing Jewish non-public schools are, at the same time, funding their local public schools through the payment of property and other taxes while choosing not to utilize those very schools which they are helping to fund.  Thus, Jewish day school parents save local school districts an average of $12,450 per student educated in a non-public school, even before accounting for the tax income these parents provide to the school system.  Thus, as a matter of economic fairness, Jewish day school parents should be able to receive some amount of benefit from the state/locality alongside their fellow citizens.

Benefits to the Educational System

The Orthodox Union believes that a vibrant system of parental choice benefits both public and nonpublic school students by introducing competition to the educational system, leading to reduced costs and improved educational outcomes. The Orthodox Union supports school choice policies that allow parents to decide where to educate their children – regardless of their zip code or financial means.

Social Justice

The Orthodox Union supports government policies that support school choice on the basis of social justice principles.  The Jewish commitment to social justice leads to broad Jewish support for state subsidies for a basket of basic necessities including food (ie: food stamps), housing (ie: Section 8 vouchers) and medical care (ie: Medicare, Medicaid and other aspects of the ACA) through programs that allow the recipient to select the products or services most suitable to them – and spend state funds to purchase them.  In the view of the Orthodox Union, education is as critical a basic necessity as any of these and thus warrants state support in a form that also allows the recipient to use the funds in a format which best addresses his or her needs.

Constitutionality

Federal Constitutional Issues

The United States Supreme Court has found several programs of government aid to non-public, including parochial, education to be constitutional.  These include school voucher programs,[1] education tax credits,[2] programs providing educational services,[3] and educational materials.[4]  In each of these cases, the core rationale of the Court was essentially the same, an aid program is constitutional so long as the state aid was provided in a manner which neither favored religion over non-religion, had a secular purpose and, where relevant, the aid to a religious school flowed there based on the independent choice of private citizens.

State Constitutional Issues

Most state constitutions contain provisions, known as “Blaine Amendments,” that are more elaborate in their language with regard to separation of religion and state than the U.S. Constitution’s Establishment and Free Exercise clauses.  For example, Wisconsin’s Constitution states:  “nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.”[5]  Likewise, California’s Constitution states:  “No public money shall ever be appropriated for the support of any sectarian or denominational school, or any schools not under the exclusive control of the officers of the public schools…”[6]

It is the view of the Orthodox Union that typical voucher programs, such as they exist in Wisconsin or Ohio, are valid even in states with so-called “Blaine Amendments.”[7] The key reason is that the voucher monies are not being allocated by the state governments to religious institutions; rather, the vouchers are put at the disposal of parents, who privately decide whether or not the money goes to sectarian schools. To date, Wisconsin and Ohio’s supreme courts have followed this line of reasoning and upheld their voucher programs as valid under their respective state constitutions – despite having provisions in their constitutions barring state money to sectarian institutions.

Tax Credit Scholarships and Constitutional Issues

Tax credit scholarship programs operate by providing tax incentives for businesses or individuals to support scholarship-granting organizations. Generally, a taxpayer makes a donation to a scholarship granting organization and reduces his or her end-of-year tax liability by a percentage of that donation amount (varying between 60% and 100%, depending on the state and program). Scholarship-granting organizations in turn administer scholarships to help students cover the cost of attending a private or public school of their choice.

Tax credit scholarship programs have been challenged in several states.  Opponents argue that government-issued tax credits (which reduce tax revenues for the state) are essentially the same thing as government expenditures. Tax credit scholarship programs, they argue, violate the Establishment Clause by supporting sectarian schools and, in several states that host such programs, “Blaine amendments” in their state constitutions.

However, these constitutional challenges have consistently been rejected by the U.S. Supreme Court and the supreme courts of every state where tax credit scholarship programs have been challenged. In Arizona Christian School Tuition Organization v. Winn,[8] the U.S. Supreme Court held that taxpayers lack even the standing to challenge tax credit programs under the Establishment Clause and tax credits are not considered expenditures – in other words, uncollected taxes are not considered government expenditures. Likewise, every state supreme court that has taken up the issue has ruled that tax credit scholarship programs do not violate their states’ Blaine amendments because under tax credit schemes, the money never enters the treasury.

Even in state where Blaine amendments are perceived (wrongly, in the Orthodox Union’s position) to bar traditional voucher programs, tax credit scholarship programs are on solid constitutional footing.

Specific Policies Supported by the Orthodox Union

The Orthodox Union supports a range of policies that expand school choice and make private school tuition more affordable for Jewish and non-Jewish families alike. In all these cases, the Orthodox Union supports government policies that treat all education institutions – whether sectarian in nature or not – equally.

Security Grants

The first priority for the state, and a community, is to keep its citizens safe.  In the wake of the attacks of September 11, 2001, terrorist threats against Jewish institutions, including Jewish schools, became more explicit and noticed.  As part of its response to this reality, the Orthodox Union joined with other allies across the Jewish and general nonprofit sectors (most notably with the Jewish Federations of North America) to work with bipartisan supporters in Congress to create a federal grant program to aid nonprofit entities, including Jewish schools, to improve their physical security and protect their users.  Since its inception, the Nonprofit Security Grant Program (NSGP) has awarded more than $100 million in grants to nonprofits deemed to be at risk of attack.  NSGP grants are awarded on the basis of religion-neutral criteria in a manner consistent with constitutional precedents dating back decades that state support for protection of religious institutions is permissible.[9]

Reimbursement for Government-imposed Mandates

In many states, nonpublic schools are required by the state government to perform a range of required recordkeeping, testing or other administrative tasks.  Because such requirements impose additional time and work burdens on staff and administrators, but serve a public purpose, several states reimburse nonpublic schools for the cost of compliance with these requirements.  Ohio and New York are two examples of states where such reimbursement is provided.  The Orthodox Union supports such reimbursement as a matter of fairness and equity to nonpublic schools.

Special Education Services

It is a fundamental component of American education policy to provide educational opportunity to children with learning disabilities.  At the federal level, legislation to aid students with learning disabilities was first enactedin 1975 to better address the needs of this population.  From its inception, IDEA contained provisions which directed support for special education services in parochial schools. [10]  This policy has been supported by bipartisan leaders in Congress over many decades and the Orthodox Union has worked closely with these leaders to steadily improve IDEA’s laws and regulations so that eligible children in our schools receive the services they are entitled.  The Orthodox Union also works to support the expanded and equitable provision of special education services at the state level.

In-Kind Support (Nursing Aid, Textbook Aid, Technology Aid, etc.)

There is an array of “support” services which several states have provided in an “in kind” manner, where the states do not provide the nonpublic schools with funds, but with services and materials.  The Orthodox Union supports the consistent and expansive provision of these services.

 

Every schoolchild deserves equal access to a basic level health care regardless of where they attend school.  There is a great need for a health care professional to be accessible in every school to care for students with allergies that might need urgent care, or children with diabetes, asthma and every day issues that might arise.  Also, school nurses are often the first line of defense in cases of epidemic, flu etc. where quick care can prevent disease from running rampant.  Thus, the Orthodox Union supports the provision of school nurses to all K-12 schools – including nonpublic and parochial schools.

 

Every schoolchild also deserves up to date textbooks and instructional materials, which today includes technology of various types.  Many states provide secular textbooks and the loan of computers and other educational technologies.  These programs have been upheld in Supreme Court decisions.[11]  The Orthodox Union strongly supports the consistent and expansive provision of these services.

 

Free Transportation for All Students

Another basic service provided in some localities to nonpublic school students, including those attending religious schools, is transportation to and from school.  Yet another support program long ago recognized by the Supreme Court as constitutional,[12] its availability is inconsistent across states and localities.  The Orthodox Union finds this troubling for there are many reasons, having nothing to do with equitably supporting our schools, for the state to provide transportation services to our students.  Study after study indicates that travel by school-bus is the safest means for students to get to and from school.[13]  Moreover, school-bus transit is more energy efficient, environmentally friendly and causes less traffic congestion than private transportation alternatives – which typically translates to individual families driving their children to and from school.  The Orthodox Union thus supports transportation initiatives that serve all non-public school students.

Energy Efficiency Rebates and Grants

The need to upgrade the energy systems of America’s schools has, in recent years, garnered greater attention and support.  School buildings are large, and a substantial portion of their overhead budget is their energy cost.  Many policymakers have put forward proposals to renovate and retrofit school buildings to make them more energy efficient.  President Obama has made such proposals on at least two occasions in the past three years and, at the urging of the Orthodox Union, his last proposal, in July 2011, included non-public schools as eligible to receive state aid for energy retrofits.  These initiatives will result not only in reducing the operating costs of schools, they will serve the broader goals of reducing energy consumption and better protect the environment.  The Orthodox Union supports, and will continue to lead, initiatives in this vein.

Tuition Tax Credits

The Orthodox Union supports all manner of tax credits, whether federal or state, for tuition payments.  As noted above, parents paying tuition for Jewish schools are simultaneously paying to support their local public schools through their tax payments and saving those public schools the expenditures that their children.  Tuition tax credits are appropriate as a basic element of equity.

Tax Credits for Donations to Scholarship Organizations

As referenced earlier, more than half a dozen states now offer tax credits for some types of donations to education scholarship organizations.  These programs have brought tens of millions of new dollars into the K-12 education arena in the states where they exist, in ways that have benefited both public and nonpublic schools.  In the states where scholarship donation tax credits exist, Jewish Federations and other organizing institutions have raised many millions of dollars for scholarships within their communities.  The Orthodox Union strongly supports these programs and their expansion.

Education Vouchers

The Orthodox Union supports school voucher programs.  Such programs are an excellent means of empowering parents to obtain their preferred choice for their children’s education.  Voucher programs are in place in Milwaukee, Cleveland and Washington, DC and have helped thousands of low income students leave failing public schools and find academic opportunity and success in a diverse array of nonpublic schools.  Aside from the direct benefit voucher programs provide to the recipients, such programs positively impact the educational system broadly as the voucher program introduces competition into the K-12 school arena which, in turn, prods all schools to perform better with an ultimate benefit to all students.  This approach will be most widely tested in 2012-13 in the State of Louisiana.[14]  As noted above, the U.S. Supreme Court upheld properly crafted voucher programs as constitutional in 2000.

 


[1]               Zelman v. Harris, 539 U.S. 639 (2002)

[2]               Mueller v. Allen, 463 U.S. 388 (1983) ; ATSCO v. Winn, 131 S.Ct. 1436 (2011)

[3]               Agostini v. Felton, 521 U.S. 203 (1997);  Zobrest v. Catalina Hills Sch. Dist., 509 U.S. 1 (1993)

[4]               Mitchell v. Helms, 530 U.S. 793 (2000)

[5]               WI Const. Art. I;18.

[6]               CA Const. Art IX;8.

[7]               The phrase “Blaine Amendments” refers to amendments to state constitutions that bar states from providing public money directly to religious institutions – usually educational institutions. They are named for Senator James Blaine, who introduced such a constitutional amendment to Congress in 1875. His amendment failed to pass the U.S. Senate, but was subsequently adapted to 38 state constitutions in the following years.

[8]               Supra note 2

[9]               Everson v. Bd. of Educ., 330 U.S. 1 (1947)

[10]             Federal special education legislation was first enacted as part of the Elementary & Secondary Education Act of 1965, then the Education for All Handicapped Children Act in 1975; these are predecessors to the Individuals with Disabilities Education Act.

[11]             Board of Education v. Allen 392 US 326 (1968); see also Mitchell v. Helms, supra note 4

[12]             Everson, supra note 9

[13]             See fact sheet from National Highway Transportation Safety Admin. at http://www.nhtsa.gov/School-Buses

 

[14]             See “Reform School on the Bayou”, Wall Street Journal, April 15, 2012.