High Court Ruling Releases Funds for Jewish Day Schools

An official of Tarah Umesorah, the National Society for Hebrew Day Schools, said today the agency was advising its approximately 200 affiliated day schools in New York State to accept state reimbursement funds following a U.S. Supreme Court decision ending a lower court stay on such payments.

The State Comptroller’s office announced, shortly after the Supreme Court action Tuesday, that checks totalling $20 million were being mailed to some 2000 non-public schools. Under a 1974 law, the Jewish schools are entitled to about $800,000 annually in such reimbursements.

Rabbi Bemard Goldenberg, chairman of the Torah Umesorah executive committee, told the Jewish Telegraphic Agency that the affiliated yeshivas had been advised to accept the funds totalling about $1.6 million — though the Supreme Court had not, in its action Tuesday, ruled on the constitutionality of the state’s 1974 Mandated Services Law. Under that law, reimbursement is made to non-public schools for costs they incur in performing state-required tests, such as Board of Regents examinations and pupil attendance reporting.

Asked about the possibility that, if the Supreme Court rules the 1974 law Unconstitutional , the non-public schools might be required to return the reimbursement funds, Goldenberg said, “We will cross that bridge when we come to it.” Dennis Rapps, executive director of the National Jewish Commission on Law and Public Affairs (COLPA), said no court has ever required repayment of such funds. Rapps has been the attorney for the Jewish schools throughout the legal battle.

BACKGROUND OF ISSUE

The struggle between Jewish supporters and foes of such payments to Jewish day schools dates back to a 1970 state low for reimbursement of mandated services which the Supreme Court ruled unconstitutional in that year because the court held the law lacked safeguards to assure its application did not involve an “entanglement” with religion in violation of the First Amendment. The New York Legislature promptly approved a new law in 1974 which required the school records be audited and exact use of the funds for reimbursement of mandated services be spelled out.

The 1974 Required Services Law was challenged by Public Education and Religious Liberty (PEARL), an umbrella group which opposes government funds for non-public schools. A federal district court held here last December that the revised law was constitutional but it also granted PEARL a stay until Tuesday to permit PEARL, represented by Leo Pfeffer, to appeal the district court ruling to the Supreme Court.

While the immediate effect of the Supreme Court ruling, which barred continuation of the stay, was to permit release of the funds, held in escrow by the State Comotroller, the question of the constitutionality of the 1974 law was not acted on, according to Howard Zuckerman, COLPA” president.

The Supreme Court is considered likely to rule soon on the constitutionality of the 1974 law Zuckerman said COLPA will submit a brief to the Supreme Court soon, asking that the lower court ruling be sustained. Joining in that brief are COLPA for the Jewish day schools, and the law firm of Davis, Polk and Wardwell of New York City for non-Jewish parochial schools. Zuckerman said the fact that the Supreme Court was permitting distribution of the reimbursement funds suggested there was support in the Supreme Court for the revised reimbursement law of 1974.

The Supreme Court action was lauded by Dr. Bernard Fryshman, chairman of the Agudath Israel commission on legislation and civil action, who called the ruling a “harbinger of a new positive approach of the Supreme Court to non-public education.” He expressed satisfaction that New York Jewish day schools would receive nearly $1 million in “sorely-needed funds” before Passover, especially in “the light of Russian immigrant children,” many of whom have to be accepted by day schools on scholarships.