by The Jewish Press Editorial Board

If things go well, as some expect, in a case before the United States Supreme Court in the next few months, we could be on the cusp of a major breakthrough in tuition relief for yeshiva parents.

Eight national Orthodox organizations have joined in a friend-of-the-court brief (amicus curiae) filed by COLPA, the National Jewish Commission on Law and Public Affairs), and written by the eminent constitutional lawyer Nathan Lewin, arguing that the Supreme Court should reverse a 1971 decision regarding parochial schools. The landmark case of Lemon v Kurtzman prohibited any public offset of any part of such school’s educational expenses, regardless of whether those expenses are religious – or secular-related.

Joining COLPA in the brief are Agudath Israel of America, Agudas Harabbanim of the United States and Canada, Coalition for Jewish Values, Orthodox Jewish Chamber of Commerce, Rabbinical Alliance of America, Rabbinical Council of America and Torah Umesorah (National Society for Hebrew Day Schools).

In the Lemon case, the Court ruled that state statutes that provide public funding for even secular instruction in religious schools – including salaries for teachers of secular subjects – violated the Establishment Clause of the First Amendment. The Court based its ruling on its conclusion that the amount of oversight of teachers and curricula required to ensure that there was no injection of religion into secular topics would require the government to become excessively involved in the nuances of religious education. The Court also expressed the fear that governmental financial involvement in religious schools would inevitably lead to “an intimate and continuing relationship between” between church and state.

Although these concerns were in the nature of self-fulfilling prophesies and would require proving negatives to overcome, they drove Establishment Clause jurisprudence for decades and were referred to together as the “excessive entanglement theory.”

The case now before the Court involves a Maine statute that automatically and completely excludes sectarian schools from an education funding program designed to aid Maine’s private schools. Alone among the several amicus curiae briefs filed in the case, the COLPA brief explores the fundamental unfairness and unconstitutionality of requiring religious school parents to pay for the secular education Maine requires parents to provide to their children while the tuitions for the secular education provided in all other private schools are paid out of the public treasury.

As Lewin has noted, “It is difficult to imagine any comparable pressure in American law. When is someone who complies with a legal mandate punished for doing so in a manner that complies with his or her religious observance?

In recent years the “excessive entanglement theory” has not been applied by the Supreme Court all that much. Indeed, the Court has lately approved such things as public funding tuition vouchers for parochial school parents, which allows parents to purchase, as it were, secular education services in a parochial school setting on the same basis as public school parents do in a public school setting.

But Lewin also makes the point that as outmoded as the direct holding in Lemon has become, it is still on the books and no legislature would dare to enact laws funding the salaries of secular teachers in religious schools. So, it’s time for the Supreme Court to officially jettison the “excessive entanglement” anachronism.