Updated: Nov 27, 2021
It is Thanksgiving Day weekend, which might be a good time to reflect upon “getting along,” and how the secular education of children may help, and the non-education of children may hurt. Thanksgiving Day is about people who were very different (pilgrims and Native Americans) getting together to act for the benefit of all. Sitting down and talking to each other, and not stealing from the other. Perhaps today’s hyper-partisan Democrats and Republicans should ponder this. Perhaps people of different religious beliefs too.
The subject of this post is the taxpayer-funded busing of children to “private schools” where, I am informed, they do not received the New York State-required education—an education that will teach the children about American history, and about getting along with citizens of all national origins, races, and religious beliefs. I am writing about the private schools of, for example, the Satmar Hasidic sect, where I am informed children (especially boys) receive almost no secular education after age 13.
If taxpayers fund busing to schools that do not properly educate, then the taxpayers are essentially enabling constitutional wrongdoing—enabling the leadership of a religious sect to keep its children in an intellectual cage, to the detriment of both the children and the larger society. Children need education so that they can be self-sufficient as adults. Democracy needs an educated citizenry.
The Jewish publication The Yeshiva World gloated in a November 21, 2021, story that:
“In a massive win for New York yeshivos [sic], a state judge ruled that a school district must provide busing for non-public school students on days that public schools are closed.”
The article went on to explain that:
“The case was filed by the Orthodox Jewish community in Blooming Grove in July, saying that the guidance affected some 170,000 frum students in New York, and around 400,000 students in total.
New York State Supreme Court Justice Peter Lynch ruled that the Washingtonville School District was in violation of state education law by refusing to provide said transportation, and that state education department guidance allowing districts not to provide busing on days that public schools are not in session was ‘null and void.’”
As some readers may recall, I filed a lawsuit in 2018 seeking to stop the payment of taxpayer funds to yehsivas that do not provide a sound secular education. The federal claims in my lawsuit were dismissed, and while the state claims survived, the case has remained in limbo. I sought some backing, as it is difficult to pursue such a case alone, yet I received no support from YAFFED, or the folks who comment on CWTDWYTK, or from anyone else.
As an individual lawyer, I cannot prevail against a powerful religious group alone. I would need the help of others. If the citizenry sees a problem, the citizenry needs to get itself involved.
As is clearly the case, neither the Democratic nor Republican Party leadership will do anything to help. Both need, want, or are fearful of, Bloc support. The now-very-conservative and pro-religion US Supreme Court will undoubtedly support the ultraorthodox on most issues, at least absent the citizenry somehow making clear, in nonpartisan fashion, that it is faced with the threat of theocracy and the destruction of democracy under the rule of law. Moreover, Democratic-Republican party politics, in my observation, enables both corruption and theocracy.
However, if a large group of people were willing to organize on these issues (instead of merely complaining on Facebook pages), perhaps something could be achieved.
Perhaps the above-mentioned “massive win” for the Hasidic community might the motivation to help. It seems to me that the United Jewish Community of Blooming Grove v. Washingtonville Central School District (Albany County, Nov. 18, 2021) decision could provide the impetus to act, as the dollar amounts involved in busing up to 400,000 ultraorthodox children in this region, during the entire school year, must be quite substantial. Millions and millions of taxpayer dollars.
Let me be very specific. The United Jewish Community busing case discussed above, and mentioned on CWTDWYTK in a November 23, 2021 post, does represent a (small) victory for the Hasidic community. Moreover, on the facts presented and the state statute, it appears to me that the judge properly ruled in favor of the Hasidic families who rely on public school buses to transport their children to private schools.
However, there was one HUGE potential fact left unaddressed by all parties, namely, whether the private schools were operating lawfully. N.Y.S. Education Law § 3635 specifically provides for transportation to and from a private school that the children “legally attend.” In my view, a child does not “legally attend” a school that does not provide the N.Y.S.-required secular education. It seems to me that there should not be a presumption that a private school is providing the required education absent the certification from an appropriate public official, such as the local public superintendent of schools, “accrediting” the private school. Without accreditation that the school is meeting state educational requirements, it is not operating for its only lawful purpose as a private school, namely educating children on the Education Law-mandated subjects.
Thus, absent a showing that the private school is teaching what it is legally required to teach, it should not be considered a lawful “private school.” Rather, it is merely a place for worship and for religious education. Children do not “legally attend” a school that is not, in the eyes of the law, a “private school.” And accordingly, taxpayer funds for busing are not authorized under Education Law § 3635.
It is a basic principle of American constitutional law that public funds cannot be used to further religion. The Establishment Clause prohibits this. The U.S. Supreme Court has allowed taxpayer funds to be used to support secular activities, and this includes financial support to parents who send their children to a Catholic parochial school where State-required secular subjects are taught (and religious instruction given too). See, e.g., Everson v. Board of Education, 330 U.S. 1, 15-16 (1947) (“No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”). As the Supreme Court specifically stated in Everson:
“This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious, rather than a public, school if the school meets the secular educational requirements which the state has power to impose.”
Id, 330 U.S. at 17 (emphasis added), citing Pierce v. Society of Sisters, 268 U.S. 510 (1925). In viewing the “wall between church and state” as remaining intact (and “impregnable”), the Everson court concluded by observing that the taxpayer subsidy for parents’ transportation costs:
“does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools.
Id, 330 U.S. at 18 (emphasis added).
One might wonder why neither the Washingtonville School District nor the N.Y.S. Attorney General’s Office made inquiry into whether or not the purported “private schools” (yeshivas) qualified as such. Is the Attorney General afraid of alienating the Bloc vote now that she is running for governor? I prefer to think not. I prefer to think it a mere oversight by the school district and state attorneys, because the question has not likely been raised before in litigation (other than my own litigation).
It seems to me that now is an appropriate time for taxpayers to raise the issue, whether Washingtonville taxpayers, or State taxpayers (if any state funds are used for busing). Perhaps the existing parties can ask for reconsideration or to re-argue the summary judgment motion based upon what I write above, or perhaps a citizens group or public interest organization (such as YAFFED) could intervene?
I have not researched the subject, but I am confident that as to what I write above, “where there is a will there is a way” to challenge the United Jewish Community busing decision.
Mike Diederich, Jr. November 24, 2021
 See, MASSIVE WIN: Judge: NY School Districts Must Provide Busing to Non-Public School Students on Public School Off Days, The Yeshiva World, November 21, 2021, available at https://www.theyeshivaworld.com/news/general/2031300/massive-win-judge-ny-school-districts-must-provide-busing-to-non-public-school-students-on-public-school-off-days.html?fbclid=IwAR2AELkCFcM9ZtCS7AUU3QOJcs8_b-ymzmrlJcxBa2UFNS_JHqjnRZhP7zo.