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Mitchell v. Helms
Supreme Court of the United States


The National Jewish Commission on Law and Public Affairs ("COLPA") is an organization of volunteer lawyers and social scientists that advocates the position of the Orthodox Jewish community on legal issues affecting religious rights and liberties in the United States. COLPA has consistently supported the principle of fair and even-handed treatment for children who attend Jewish and other religious schools. Over the past 31 years, since Board of Educ. v. Allen, 392 U.S. 236 (1968), COLPA has filed amicus briefs in nearly all of this Court's educational funding cases involving the Religion Clauses of the First Amendment.

COLPA submits this amicus brief on behalf of, and is joined by, the following national Orthodox Jewish organizations:

  • Agudas Harabonim of the United States and Canada -- The oldest Orthodox rabbinical organization in the United States. Its membership includes leading scholars and sages, and it is involved with educational, social and legal issues significant to the Jewish community.
  • Agudath Israel of America -- The nation’s largest grassroots Orthodox Jewish organization, with chapters in numerous Jewish communities throughout the United States and Canada. One of Agudath Israel's functions is to serve as an advocate for the cause of Jewish schools and Jewish education.
  • National Council of Young Israel -- A coordinating body for more than 300 Orthodox synagogue branches in the United States and Israel that is involved in matters of social and legal significance to the Orthodox Jewish community.
  • The Rabbinical Alliance of America -- An Orthodox Jewish rabbinical organization with more than 400 members that has, for many years, been involved in a variety of religious, social and educational areas affecting Orthodox Jews.
  • The Rabbinical Council of America -- The largest Orthodox Jewish rabbinical organization in the world with a membership that exceeds one thousand rabbis and is deeply involved in issues related to religious freedom.
  • Torah Umesorah-National Society for Hebrew Day Schools -- The coordinating body for more than 600 Jewish Day schools across the United States and Canada.
  • The Union of Orthodox Jewish Congregations of America ("U.O.J.C.A.") -- The largest Orthodox Jewish synagogue organization in North America with over one thousand member congregations. Through its Institute for Public Affairs, the U.O.J.C.A. represents the interests of its national constituency on public policy issues.

Each of these organizations subscribes to the view that Jewish education is a key, if not the key, to Jewish continuity and survival. The overwhelming majority of these organizations' constituents, as well as an increasing number of Jewish parents who are not affiliated with these organizations, choose to send their children to Jewish elementary and secondary schools. Thus they have a direct stake in the outcome of this case.

The growth of Jewish day schools has been dramatic. In New York State, home to the largest concentration of Jewish families in the United States, State Education Department figures for school year 1980-81 show 215 Jewish elementary and secondary schools servicing some 56,000 students. Ten years later, for school year 1990-91, the number of Jewish schools had grown to 258; the number of students to more than 82,000. For school year 1997-98 (the most recent year for which figures are available), the New York State Education Department counted 308 Jewish schools servicing more than 97,000 students. Similar growth patterns – albeit not as dramatic – have occurred in other parts of the country.

But with growth come growing pains. Many Jewish schools, especially those that service children from low-income backgrounds, struggle mightily to meet skyrocketing budgets. Outstanding teachers leave their jobs because they are paid too little, too late or not at all. School facilities are often inadequate, basic maintenance and repairs unavailable, and books and educational materials in short supply – all for a lack of funds. And while it is heartening that the American Jewish community has committed a greater percentage of its charitable resources to Jewish education, many Jewish schools continue to face serious fiscal problems.

These problems frequently result from the dual program of instruction that typifies Jewish elementary and secondary schools across the United States. Each school is, in effect, two schools in one -- a religious studies school, staffed by rabbis and scholars of Jewish learning, whose purpose is to educate students in the traditions of the Jewish religious faith, and a separate secular studies school, staffed by teachers of various faiths, whose purpose is to provide a secular education substantially equivalent to that provided in public and non-denominational private schools. Given this rigorous dual academic track, the cost of education in Jewish day schools is constantly increasing.

The decision of the court below forecloses governmental assistance necessary to help Jewish day schools enter the new century with the modern-day technological equipment and supplies needed to access contemporary sources of learning. This is unfair to parents who conscientiously practice the Jewish faith.

It is precisely because the stakes are so substantial that COLPA and the Orthodox Jewish organizations it represents ask this Court to take this opportunity to re-evaluate the continued vitality of Lemon v. Kurtzman, 403 U.S. 602 (1971). The ruling in that case barred secular studies teachers in religious schools from receiving any portion of their salaries from governmental sources. As elaborated below, that decision was premised on constitutional assumptions that have since been repudiated in the Court’s more recent Establishment Clause jurisprudence. Disavowal of the Lemon holding would not only protect the important Chapter 2 program at issue in this case. It would enable schools created by the Jewish community to share equally in secular governmental assistance that is designed to make all Americans of all faiths better informed citizens who can contribute, as they mature, to the welfare of American society and to world progress.

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