Supreme Court Upholds N.Y. Law on Parochial School Aid; Nullifies Yeshiva U Faculty Union

The Supreme Court’s five-to-four decision today upholding the constitutionality of New York State’s 1974 Required Services Law (RSL) was welcomed by the Jewish legal organization which represented the state’s Jewish day schools throughout the long legal battle which was ended by the Supreme Court decision.

Howard Zuckerman, president of the National Jewish Commission on law and Public Affairs (COLPA) said the ruling marked the first time the Supreme Court has approved any state funds being paid directly to religious -sponsored day schools for educationally-related activities.

Zuckerman said that, prior to today’s ruling the Supreme Court, had approved as constitutional funding only for transportation and textbooks, and in neither category did the state funds go directly to the schools. He said that in the ruling today, the Supreme Court held that it is permissible for state governments to reimburse religious schools for expenses expended for attendance record-keeping and the grading of regents’ board type (uniform) examinations.

The COLPA president added that the ruling meant the Supreme Court will no longer automatically invalidate state programs of funding to religious schools for their secular activities, which has been, until now, the high court’s position.

$1 MILLION-A-YEAR AT STAKE

At stake for Jewish day schools in New York State is about $1 million a year in state funds to pay for the mandated services. The battle also has pitted Orthodox Jewish organizations, the principal sponsors of Jewish day schools, against Public Education and Religious Liberty (PEARL), an umbrella group which opposes government funds for non-public schools.

The legal battle began in 1972 when the Supreme Court struck down the state’s 1970 Mandated Services Law for reimbursement of mandated services on grounds that law locked safeguards to assure that its application did not involve any “entanglement” with religion in violation of the First Amendment. The New York Legislature promptly approved in 1974 a revised version — the Required Services Law — which required that school records be audited and the exact use of the state funds for reimbursement for mandated services be precisely spelled out. It was the 1974 law which the Supreme Court held constitutional today.

A federal district court in New York ruled in December, 1978 that the 1974 law was constitutional but it also granted a brief stay to PEARL to appeal the ruling to the Supreme Court. PEARL has been represented as the plaintiff by Leo Pfeffer, counsel for the American Jewish Congress, one of the organizations making up PEARL.

Dennis Rapps, COLPA executive director, represented yeshivas in the Supreme Court action. A brief filed last September by Nathan Lewin, a COLPA vice president, contended that the New York 1974 law “reimburses the school only for activities which are thoroughly secular and which cannot, by any stretch of the imagination, be converted to religious indoctrination.”

Zuckerman also asserted that the ruling was an indication that the Supreme Court is “at last” abandoning its “doctrinaire approach” to the issue of government funding for non-public religious schools.

Julius Berman, president of the Union of Orthodox Jewish Congregations of America, said the ruling today indicated that “at long last” the Supreme Court was taking “a rational view” of such aid programs. Berman said the Supreme Court’s “doctrinaire” approach over the years had not only caused “unnecessary and unconscionable hardships” for Jewish parents sending their children to such schools, but that it also “fostered a perception” of religious education as being somehow “suspect.” He praised the work of COLPA attorneys for their efforts on behalf of religious schools.

Rabbi Moshe Sherer, president of Agudath Israel of America, called the ruling a “landmark decision.” He expressed the hope that it would “serve notice on those who blindly oppose any form of government assistance to non-public schools.” He called the ruling “a victory for the millions of American children whose parents opt for their right to select a school of their choice.” He said Jewish foes of such government aid should see the ruling today “as a harbinger of a new mood in the Supreme Court and the nation to rectify the injustice from which non-public schools have suffered for years.”

YESHIYA FACULTY RULING

In another ruling affecting Jewish education, the Supreme Court held today, in a case involving efforts of Yeshiva University faculty members to form a union recognized by the university administration, that universities are not required to recognize unions made up of faculty members who have substantial authority over university policy.

That ruling, also by five-to-four, was considered by higher education experts as likely to have a decisive impact on collective bargaining by such faculty members. The court declared that the National Labor Relations Board could not recognize the Faculty union at Yeshiya University because the teachers essentially controlled policy and therefore constituted management.

The NLRB had ordered the university administration to bargain with the faculty group on the grounds that the faculty merely recommended policy. The Supreme Court decided that the faculty recommendations amounted to policy in curriculum, grading, admissions, academic calendars and course schedules. Associate Justice Lewis Powell wrote for the majority that the authority of faculty members in academic matters “is absolute.”