By Yossi Prager

Since the retirement of Justice Anthony Kennedy last week, the media discussion has centered on the possible impact of a new justice on a series of polarizing judicial questions. Unfortunately, today the focus always seems to be on the polarizing. However, some issues that at first appear polarizing become less so when examined with a nuanced lens. Take, for example, the Jewish community’s perspective on government funding for parochial schools, on which there a growing consensus among Jewish communal organizations. And, given sufficient will, our Jewish community could help to dramatically increase funding for Jewish day schools in consensus-building ways, helping to make Jewish education affordable and contributing to a new generation of young Jews who energize and serve American Jewish communities.

Say “school choice,” or “government funding for parochial schools” and people think about state support for religious education, a clear constitutional violation. Or they think about voucher programs, which have been upheld by the Supreme Court but remain politically divisive because of a fear of harm to public schools. However, U.S. day schools today already receive several hundred million dollars annually in government funding for a range of non-religious purposes and in 17 states benefit from incentives created by state tax-credit programs.

Here’s a quick list of federal and state programs that benefit day schools:

• Title I services for economically disadvantaged students and services for children with disabilities, and state programs for special education
• Title II professional development resources
• Free and reduced meals program administered by the US Department of Agriculture
• Grants to strengthen security
• General studies textbook loans
• School transportation
• Nursing
• Classroom technology (not for religious studies)
• Energy efficiency
• STEM teachers

Most of these programs are long-standing and all are consistent with Supreme Court precedent. They also have not come at the expense of public schools.

More recently, 17 states have adopted programs that offer state tax credits for contributions to scholarship funds for non-public schools. In these programs, states do not allocate funds to parochial schools but forego tax revenue in order to incentivize taxpayers to help other families afford private education. Programs in Pennsylvania, Florida and elsewhere have brought significant new scholarship dollars into Jewish day schools. These programs were found constitutional by the U.S. Supreme Court, similar to the tax deductions that donors have always received for contributions to charitable organizations.

These kinds of programs have also generated the support of the Jewish Federations of North America (JFNA). Last year, JFNA convened a work group that focused on school choice issues and “achieved consensus on federal tax policy and other incentives to make day school education more affordable while continuing to sustain public education.” This consensus included, “JFNA promotes the expansion of federal tax incentives that can reduce the cost of day school education.” While the work group took no position on school vouchers, JFNA has endorsed the multitude of funding streams described above as consistent with the Jewish communities’ commitment to church-state separation and public education. Not everyone in the Jewish community agrees, of course, but it is remarkable that the Federation umbrella organization found a broad consensus among its constituents.

The real question at this point is whether the Jewish community will muster the growing political consensus toward greater advocacy work for additional funding to lower the cost of day school education. Federations in many communities devote some staff time to this, and the Orthodox Union has been leading the charge for public funding in key states by creating coalitions of day schools from across the religious spectrum. Much more remains to be done – and can be done – if we talk in a nuanced way that permits a focus on what unites us rather than the issues that divide us.

And, to return to the new Supreme Court member, the next Court will likely decide whether states can discriminate against religious schools in otherwise neutral and secular funding programs. By a 7-2 vote, the Supreme Court last year overturned a decision by the State of Missouri to exclude a church school from a program that funded the purchase of recycled tires to improve the safety of school playgrounds. The Court left open the question of whether this precedent extended to funding programs beyond the safety of children. At some point, the newly-reconstituted Supreme Court will have to address whether governments can discriminate against religious schools in other funding areas. Perhaps this will be a case in which the Jewish community can also build consensus.

Yossi Prager is Executive Director – North America for The AVI CHAI Foundation.

Cross-posted on AVI CHAI’s blog