Jews have long taken the view that a strictly separationist reading of the First Amendment is better for Jewish thriving. But the time has come to change course
Jewish charter schools (JCSs) — publicly funded but independently operated K–12 schools teaching Jewish and secular subjects — would address many of the American Jewish community’s most vexing problems. JCSs avoid the “tuition crisis” that has put Jewish day schools out of reach for middle-class Jews and forced schools to rely on massive donations. They provide an alternative to public schools where Jews have traditionally thrived but feel increasingly unwelcome because of the rise of DEI programming and concurrent anti-Israel orthodoxy. And JCSs in fledgling communities would have the salutary effect of allowing Jews to start branching out geographically, easing the pressure to live in expensive neighborhoods.
Yet no JCSs exist. Why? Simple: The First Amendment — at least in the minds of most Americans and nearly all Jews — seems to prohibit the use of taxpayer funds to charter religious schools. What’s more, Jews have long believed that construing the First Amendment to preclude JCSs is not just constitutionally required but a worthwhile trade, because a strict approach to the “separation of church and state” is, overall, good for the Jews. Leonard Fein, the writer and activist known as “the father of Jewish social justice,” exemplified this view: “Among our interests, the continuing separation of church from state must rank very, very high,” he wrote in 1992. “There is likely no aspect of the American constitutional arrangement that has meant more to Jews, has been a more consequential factor in Jewish safety and success in this country.”
Both of these claims — that the First Amendment prohibits sending public funds to religious charter schools and that this has been good for the Jews — are questionable at best. They may even be wrong — belied by history, legal analysis, and American social developments over the past 75 years.
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Tal Fortgang is an adjunct fellow at the Manhattan Institute. He was a 2023 Sapir
Fellow.
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