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July 05, 2022 HUMAN RIGHTS

A Contest of Illiberalisms: Balancing the Interests of Separatist Communities and the Larger Society

by Richard T. Foltin

Setting the Stage: Protecting Discrete and Insular Minorities

More than 80 years ago, the U.S. Supreme Court introduced, in what has been described as the most famous footnote of all time, the notion of “discrete and insular minorities” whose disadvantage in access to normal political processes might justify a stricter standard of review with respect to laws that subject those groups to discrimination. United States v. Carolene Products Company, 304 U.S. 144, 152 (1938) (fn.4). Now known as “Footnote Four,” this annotation specifically cited racial and religious minorities as among those groups that might need such heightened protection. Footnote Four’s progeny subsequently moved from conjecture about heightened review to reality, giving rise to the panoply of standards of review that are today a cornerstone of American constitutional doctrine.

Per the Legal Information Institute, “in determining whether someone is a member of a discrete and insular minority, courts look at a variety of factors, including but not limited to whether the person has an inherent trait, whether the person has a trait that is highly visible, whether the person is part of a class which has been disadvantaged historically, and whether the person is part of a group that has historically lacked effective representation in the political process.”

Constitutional concerns about discrimination against religious minorities arise out of a mix of contexts.

Constitutional concerns about discrimination against religious minorities arise out of a mix of contexts.


Religious Freedom and Parental Upbringing as Constitutional Values

Constitutional concerns about discrimination against religious minorities arise out of a mix of contexts, namely governmental discrimination on the basis of identity as such, and governmental actions that abridge freedom of religion as protected by the Establishment and Free Exercise Clauses of the First Amendment of the U.S. Constitution. In recent years, we have seen a tension arise between robust protection of religious freedom and strong enforcement of anti-discrimination measures, particularly with respect to LGBTQ people. This tension is often framed as a conflict between individual rights; however, as the Supreme Court made clear in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), it is necessary also to reckon with the constitutionally significant role of religious and religiously affiliated institutions in enabling individuals to form the religious communities that are often critically important to their ability to worship, promulgate, and otherwise practice their faith.

Yet another area in which religious freedom plays a crucial role—particularly with respect to promulgation and practice of the faith—is the ability of parents to direct the upbringing of their children, including the education of those children in the family faith. The keystone case on this point, although originally grounded in the protection of liberty interests under the Fourteenth Amendment and only later reframed as a free exercise case, is Pierce v. Society of Sisters, 268 U.S. 510 (1925), which held unconstitutional an Oregon statute that made it illegal for parents to send their children to private, rather than public, schools. (At the same time, the Pierce Court acknowledged the state’s interest in assuring that all schools, private or public, adhere to certain standards.)

The Special Case of Separatist Religious Communities

The greatest extension to date of parental authority over a child’s education may be found in Yoder v. Wisconsin, 406 U.S. 205 (1972). In 1968, several parents, including Jonas Yoder, were convicted of violating Wisconsin’s compulsory attendance law, which required schooling until age 16, for which they were fined $5 each. The parents appealed on the grounds that the compulsory attendance law, as applied, violated their right to the free exercise of their Amish faith, which considered education beyond the eighth grade to be contrary to their religion and way of life. The Wisconsin Supreme Court overturned their conviction, and the U.S. Supreme Court affirmed.

In his opinion on behalf of the high court, Chief Justice Warren E. Burger said, “Old Order Amish communities today are characterized by a fundamental belief that salvation requires life in a church community separate and apart from the world and worldly influence. This concept of life aloof from the world and its values is central to their faith.” The Court concluded that the educational interests of the state in secondary education were outweighed by the religious beliefs of the parents, and that “the First and Fourteenth Amendments prevent the State from compelling [the parents] to cause their children to attend formal high school to age 16.”

The issues presented by Wisconsin v. Yoder thus went beyond what is today the unremarkable notion that parents have the right to send their children to a religious school of their choosing (as opposed to an ongoing series of cases testing the extent to which taxpayers’ money is allowed—or even required—to be used to fund religious-school tuition). Rather, as Josh Chafetz noted in a 2006 law review article, the case “presented the Court with a sharp clash between the state’s interest . . . in using the educational system to perpetuate its collective way of life among the next generation . . . and the parents’ interest . . . in passing their religious beliefs on to their children.”

The debate over the balance drawn in Yoder continues to the present day. Just last year, University of Hull Professor Raphael Cohen-Almagor wrote challenging what he saw as the decision’s preference for group rights over individual rights through its upholding of the Amish denial of education to their adolescents. The main questions, he says, are “Is it reasonable to deny the Amish adolescents’ [a] standard American education? What are the limits of state interference in norms of illiberal communities who invoke separatism as a mechanism of cultural and religious preservation?”

An Ongoing Case in New York

Those questions are currently being played out in New York, as the state continues a years-long effort to apply to pervasively religious Jewish K–12 schools (known as “yeshivas”) mandates that all children in non-public schools receive instruction that is “substantially equivalent” to education at nearby public schools. Critics of the yeshiva system say the schools fail to provide adequate education on secular subjects such as English and math, resulting in graduates who are unprepared to enter the workforce or otherwise encounter the larger society. Defenders of the system say that students are well educated, in class longer than public school students each day, and that government meddling is an infringement on the community’s religious protections.

The New York State Education Department has proposed new regulations that would allow private schools several pathways to demonstrate that they are providing adequate secular education, including through accreditation or via regular assessments of student progress. If a private school does not use one of the pathways to prove they are complying with secular lesson requirements, local public school authorities must conduct a review by the end of the 2025 school year, subject to the explicit requirement that “[r]eviews shall be informed by, and respectful of, the cultural and religious beliefs and educational philosophy that may drive the curriculum in nonpublic schools and be integrated with academic content in the delivery of instruction.” The regulations, if adopted, will apply to all private schools, Catholic, Amish, and elite preparatory schools, as well as Jewish.

While hailing the proposed regulation as a step forward from earlier efforts to apply New York educational standards to yeshivas, Agudath Israel of America, an organization that represents Haredi Orthodox (sometimes referred to as “ultra-Orthodox”) has enunciated its continuing concern about what it sees as the proposal’s failure “to take into account the educational value of religious studies in determining substantial equivalency.” “Yeshiva students,” Agudath Israel says, “devote long hours to the study of the Chumash, Mishnah, Talmud and various other religious texts—a course of study that is well known to be a rigorous academic discipline of the highest order. . . . By ignoring this essential component of yeshiva education, the proposed new regulations may result in yeshivas having to make major [and unacceptable] changes to their school day schedules to be deemed substantially equivalent.” How this will play out remains to be seen.

Conclusion: Contesting Illiberalisms

But why should New York have moved to amend its regulations at all? To take Professor Cohen-Almagor’s point, doesn’t retreating from the education standards applied in other contexts constitute a harm to the future and well-being of these yeshiva students, not to mention being contrary to the state’s interest, alluded to above, in “using the educational system to perpetuate [our] collective way of life among the next generation”? But, while Cohen-Almagor may be concerned about the impact of “illiberal” and “separatist” communities on their young people, there are other sorts of illiberalism with which we must be concerned.

As Judge Learned Hand said many years ago, “The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women.”

While it is right for us to look to and enforce fundamental rights and liberties, and to convey common norms and civic values to the next generation, it is also crucial that we allow members of our society to organize themselves to the sound of a different drum, including by setting themselves apart in a separate community that adheres to norms that are not those of the prevailing culture. We are dealing here, after all, not with efforts such as those with which we have become all too familiar to impose religiously based norms on the larger society but rather with communities that seek simply to invoke, in the words of Justice Louis Brandeis, “the right to be left alone.” To fail to honor this desire is but another kind of illiberalism. Indeed, this concern about the majority not running roughshod over a minority community that has disparate values is among the concerns to which Footnote Four was addressed.

To be sure, there will be times when state interests should prevail, even with respect to separatist religious communities, but only in the context of a balancing that gives proper weight to religious freedom interests.

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Richard T. Foltin

Fellow for Religious Freedom, Freedom Forum; Co-Chair, ABA Section of Civil Rights and Social Justice's Religious Freedom Committee

Richard T. Foltin is Fellow for Religious Freedom with the Freedom Forum in Washington, D.C., and co-chair of CRSJ’s Religious Freedom Committee. He formerly served as director of National and Legislative Affairs for the American Jewish Committee (AJC) and is a longtime advocate and analyst on religious freedom issues, including several appearances before congressional committees to testify on religious discrimination in the workplace.