CIVICS IN YIDDISH: STATE REGULATION OF LANGUAGE OF INSTRUCTION IN NEW YORK'S PRIVATE SCHOOLS.

• Author: Rutman, Stephen

Introduction 1246 I. Background on the Debate over English Instruction in New York City Private Schools 1249 A. The Non-English Education Landscape in New York City, 1249 i. The Yeshiva Controversy 1250 ii. Other Examples of Non-English Instruction 1255 B. Constitutional Basis for Private Education 1259 C. State Power to Regulate Private Schools 1262 D. New York's "Substantial Equivalence" Requirement and Proposed New Guidelines 1263 E. Language of Instruction Regulation 1265 II. Demands for Secular Instruction Exclusively in English 1268 A. Conflicting Interests in Pluralism and Homogenization 1269 B. Tension in 1920s Cases over Acceptable Degree of Regulation. 1271 C. Demands for Exclusive English Instruction for Common Branch Subjects 1272 D. Potential Unanticipated Consequences of NYSED Regulation 1273 III. Constitutional Boundaries for Regulating Language of Instruction in Private Schools 1275 A. Appropriate Levels of Scrutiny 1275 B. Unconstitutionality of Exclusive English Instruction Regulation 1277 C. Dangers of Excessive Regulation 1280 D. Practical Considerations 1281 Conclusion 1284 INTRODUCTION

For centuries, New York City has been home to a diverse population. (1) Small communities have thrived in New York, and those communities have, in turn, helped New York thrive. (2) The City has cultivated a reputation as a place where one can walk down the street and hear a dozen different languages. (3) In fact, with over 600 languages and dialects, the New York metropolitan area contains the greatest linguistic diversity of any urban center in the world. (4) New proposals for enforcing New York State's education laws, (5) however, do not reflect this same commitment to pluralism.

A recent controversy over the quality of the education in New York's religious private schools--and the state's regulation thereof --raises questions about the American promise of fostering a pluralistic society, in which small enclaves outside the mainstream can prosper. Over the past decade, a group of advocates has asserted that certain Orthodox Jewish day schools, or "yeshivas," have failed to provide instruction "substantially equivalent" to the instruction offered in surrounding public schools, (6) as required by state statute. (7) As a result, the critics contend, many graduates of these schools emerge with insufficient skills in foundational subjects, such as English language and math, to pursue educational and professional goals, (8) actively participate in democratic processes, (9) and negotiate departure from their communities, if they wish. (10) In response to these allegations, the New York State Education Department (NYSED) has developed regulatory guidelines to enforce New York's "substantial equivalence" requirement." Among other things, the guidelines demand that private schools conduct classes in all statutorily required subject areas exclusively in English. (12)

This Note posits that these efforts to heighten enforcement of the "substantial equivalence" requirement overstep constitutional boundaries. A series of Supreme Court cases from the 1920s upheld parents' constitutional rights to control their children's education through private schooling. (13) The same cases, however, recognized the state's power to regulate the instruction in private schools. (14) The Court is not precise about the acceptable extent of regulation, except in clarifying that the state lacks the power to "standardize its children" through public schooling. (15) Establishing the constitutionality of the proposed NYSED regulation involves a substantive due process analysis--evaluating the government's interest in the proposed regulation and the proposed regulation's design in addressing any such interest. (16) The analysis in this situation requires weighing the United States' commitment to fostering a pluralistic society against its commitment to establishing a unified polity. Here, these competing commitments play out as a tension between cultivating a society where parents are free to educate their young in nontraditional ways (17) and a society where the government promotes linguistic homogeneity through its education systems and laws. (18) This Note concludes that, even if the state has an interest in a populace competent in the English language, the proposed requirement of teaching secular subjects exclusively in English is not an appropriate mechanism for addressing that concern.

Part I of this Note examines parents' rights to opt out of educating their children through the public-school system in favor of private schooling and state power to regulate private schools, including New York's statutory requirement of "substantial equivalence." It further evaluates the recent NYSED proposal relating to language of instruction in the context of various non-English educational programs in New York. Part II then explores a tension found in a series of cases from the early twentieth century over the constitutional limits of private school regulation under the Fourteenth Amendment and questions whether regulatory guidelines requiring secular instruction exclusively in English exceed those limits. Finally, Part III argues that while the state may demand English competence, the NYSED guidelines would unconstitutionally abridge parents' fundamental right to control their children's education.

1. BACKGROUND ON THE DEBATE OVER ENGLISH INSTRUCTION IN NEW YORK CITY PRIVATE SCHOOLS

   Reflecting the City's linguistically diverse population, New York's schools feature a wide array of non-English learning opportunities in both public and private schools. (19) One prominent example in the private school setting is Orthodox Jewish parents choosing to send their children to yeshivas, where Yiddish is the predominant language used for instruction. (20) The Supreme Court has established that parents and guardians may elect to educate their children outside the public-school system; however, it qualified this right in holding that the state maintains the power to regulate education in non-public schools. (21) Exercising that power, New York State has mandated that the instruction in private schools be on par with that of public schools. (22) In response to claims that the yeshivas have failed to live up to this standard, the State Education Department has proffered new guidelines, which could curtail non-English education across New York's private schools. (23)

   1. The Non-English Education Landscape in New York City

      Parents select schools with non-English instruction for a variety of reasons. (24) In some cases, where English is students' primary language, non-English instruction is supplementary. (25) In other cases, non-English instruction is a necessity--at least, temporarily--for teaching students without prior knowledge of English. (26) Members of certain Yiddish-speaking Jewish communities in New York fall into the latter category. (27) Regardless of parents' reasons, New York has generally accommodated various forms of non-English education. (28) In recent years, however, the substandard English skills of some graduates of New York's non-English instructional programs, including the yeshivas, have prompted scrutiny about these educational options. (29)

      i. The Yeshiva Controversy

      New York's haredi (30) Jewish communities settled in small pockets of Brooklyn and Queens in the wake of the Holocaust. (31) Residents of these neighborhoods are marked not only by their distinctive traditional attire but also by their extreme pietism and strict adherence to Jewish law. (32) These tight-knit, insular communities migrated from Eastern Europe to the United States, where they have flourished, in large part, based on their freedom to self-segregate and avoid assimilation. (33) New York's haredi population is by no means monolithic; various branches differ significantly in their ritual practices, ideological perspectives, and socioeconomic situations. (34)

      Based on their religious convictions, haredim minimize their contact with the secular world, in part, by sending their children to private yeshivas. (35) As of 2018, over 110,000 students attended Jewish day schools and yeshivas in New York--roughly the same number of students as were enrolled in the City's charter school network. (36) Yeshiva students, particularly male students, spend much of their days engaged in Jewish text study. (37) Although select classes in these schools use Aramaic or Hebrew, the default language of instruction in many yeshivas is Yiddish--the European vernacular haredim have used for generations. (38)

      Over the past decade, a small but vocal group of activists, many of whom attended New York's yeshivas, have begun sounding alarm bells about the state of secular education in haredi private schools. (39) They allege--in scores of media profiles, op-eds, and public letters --that graduates of these schools emerge without the requisite skills to navigate the secular world, let alone to seek gainful employment in it. (40) In vivid and wrenching terms, these advocates have described the failures of yeshivas to provide students with basic knowledge of science, mathematics, or history. (41) One of this group's foremost spokesmen has recounted reaching the age of 18 without knowing how to do long division or draft an essay. (42) He had never learned what a molecule or a cell was, and he had no familiarity with the American Revolution or the country's system of government. (43) A focal point in these narratives has been the limited English language instruction provided to haredi students. (44) Beyond stifling students' educational or professional pursuits, widespread English illiteracy in these communities depresses civic participation among their members. (45)

      In 2015, Young Advocates for Fair Education (YAFFED) ignited its long-standing conflict with New York City and State agencies when it published a letter signed by some affected haredi community members alleging that the quality...