Ep. 224: Religious Liberty and Education – An Interview with Kevin Vallier

December 1, 2020

Kevin Vallier, associate professor of philosophy at Bowling Green State University, joins us to discuss his chapter in the book, Religious Liberty and Education: A Case Study of Yeshivas vs. New York. His chapter is titled, “In Defense of Yeshiva Autonomy.”

Jason Bedrick: Hello and welcome back to EdChoice Chats. I’m your host, Jason Bedrick, director of policy at EdChoice. And this is another edition of our Religious Liberty and Education series.

Today, I’m grateful to be joined by Dr. Kevin Vallier, associate professor of philosophy at Bowling Green State University. He is the author of a chapter in a book titled, Religious Liberty and Education: A Case Study of Yeshivas vs. New York, of which I am co-editor. Dr. Vallier’s chapter is called, “A Defense of Yeshiva Autonomy,” which is the subject of today’s conversation. Kevin, welcome to the podcast.

Kevin Vallier: Thanks so much for having me on.

Jason Bedrick: As a pleasure and it’s a pleasure working with you and reading your chapter, I learned so much from it. It’s a very thought-provoking chapter, as I ensure that our listeners will find, especially if they go by the book and read the whole thing, but-

Kevin Vallier: Yes, and it’s concise. It’s only 12 pages.

Jason Bedrick: Yes, it is a very concise chapter. There’s a lot packed in there, although it’s very readable. You open the chapter by noting that there used to be a broad consensus in favor of religious liberty, but that in recent years, this consensus has begun to erode. And actually that some quarters, previous approval has shifted to hostility. But you argued that the earlier consensus is worth defending so, why?

Kevin Vallier: That’s right. That’s right. So just to get the dates right, in the ‘80s, there was a lot of hostility to certain kinds of religious liberty on the right, particularly having to do with things like drug abuse and in some case, exemptions for prisoners.
And after Employment Division v. Smith was handed down where there were some restrictions on religious liberty… Maybe your listeners may be familiar, there was a pretty big legislative movement to pass this bill called the Religious Freedom Restoration Act, which is a pretty substantial protection of religious liberty, and the Supreme Court understands as a kind of super statute. It’s not a constitutional amendment, but it governs a great deal of other laws. And it was passed by overwhelming majorities in the House and the Senate in 1993.

It could not be passed today. It could not be passed today because it probably requires, on a reasonable reading of it, lots of religious exemptions from certain kinds of laws supported by the LGBT movement. So it would allow, probably, exemptions for wedding vendors who did not want to serve LGBT weddings and a variety of other things, like exemptions from paying for contraception.

So now, and I see it this way, hopefully this isn’t too cynical to your listeners, but when progressors were less empowered in the culture, they tended to support liberty, but it has become more powerful. They became concerned to limit it more. So, between gay marriage and Obamacare, things shifted in a really big way.

That also matters in New York City, that the population of religiously conservative Jews, has already in particular has grown very, very quickly. It seems like the attitude towards this group seems to have shifted very dramatically in New York state. I don’t know if they were ever especially tolerant early on, but particularly with COVID and Mayor de Blasio just being so hostile, you get a really vivid example of how the consensus has changed, at least as I understand it.

Jason Bedrick: Yeah. Certainly, so just broadly speaking, there tends to be a, I think it’s a very human phenomenon, that groups that are out of power argue for pluralism and groups that are in power having more universal conception of the good.

Kevin Vallier: Yes.

Jason Bedrick: And that, I think, seems to be the case here. I would note actually that in the New York case specifically, yes, I do think there has been a recent major uptick in hostility toward the Haredi community.

It is worth noting that, right now, among Jews in New York, they used to be a very tiny percent of the population. But now Orthodox Jews more broadly, which includes the Haredi, or it’s sometimes called ultra-Orthodox community as well as the more or I call the modern Orthodox Jews. More than half of children under the age of 18 among Jews are in one of the Orthodox camps. So that has been a demographic shift.

Although that said, you can go all the way back to the ‘40s and ‘50s, and there were groups that were trying to exercise control over how the Orthodox schools run. And they failed then, and the issue lied sort of lied dormant.

Kevin Vallier: We’re returning to form.

Jason Bedrick: But we are returning. Yes, these things tend to do. So you argue that, again, we should defend this earlier consensus about religious liberty. The book does explore this specific case, which is the New York Department of Education trying to exercise greater authority and oversight over the curriculum of Haredi Orthodox Jewish schools, which are known as yeshivas.
But before we get into the specifics of the case, I’d like to take a step back and let’s just look more broadly at some of the key issues that are raised by the case. So in particular, should the government ever have the authority to override the wishes of parents or religious communities to ensure that those children receive a certain minimum level of education? If so, when and how can the government legitimately exercise this authority? You proposed a three-prong test to answer these questions. So why don’t you just broadly sketch out the test overall, and then we can more closely examine each prompt?

Kevin Vallier: Yeah. So the main idea is we’re trying to figure out and apply a specific case of how to justify state coercion and authority. So it’s really the use of violent force, the threat of it is what we’re trying to figure it out when it can be justified.
And I’ve developed broader theory of this, but the way that it applies in the Yeshiva case, Thomas’ trauma general approach to education that I’ve defended.

So what I say is that the state can intervene into private religious school education under three conditions. First, when the educational interests of children are significantly threatened. Second, when the intervention is the least coercive, effective means to protect educational interests. And three, when the government has demonstrated its ability to secure the educational interest of children better than the religious schools themselves.

That They all have to be met. Can the first one, you listen to the first condition, you think, Oh yeah, children have been interested in being educated. They should have a lot of education. If those things are threatened, well, then there should be intervention. But there’s two restrictions. It has to be the least coercive means that would work. And it has to be balanced against a robust understanding of government failure when it intervenes.

Jason Bedrick: Underlying this three-prong test is the presumption against state coercion.

Kevin Vallier: That’s right.

Jason Bedrick: Which you don’t argue for in the chapter itself, you just take this as a given.

Kevin Vallier: That’s right.

Jason Bedrick: Maybe you can explain why you take it as a given and what this means.

Kevin Vallier: In my other or broader research, I think that effectively the way that most societies have operated, and I think what’s intuitive to most people is that when people propose to interfere with or coerce another person, that calls out for a reason. Why are you messing with me? Whereas if you aren’t coercing, if you’re just not interfering, that the same kind of call is not appropriate.

So my late teacher, Jerry Gales and one of his teachers Stanley Ben developed this idea of, if you imagine Alan and Betty are on a beach and Betty’s just playing with little pebbles on the beach. She’s just doing her own thing. And Alan comes in and starts to mess with Betty. And here, the justificatory situation is pretty clear. Betty’s just splitting pebbles or whatever. Alan is intervening. So there’s a question. Why can Alan intervene?

So the idea is that even within our own practice of moral reasoning, it’s built this idea that if you’re going to mess with somebody, the burden of proof is on you.

Now, different cultures have differed radically over what would meet the burden. And liberal societies, say, it has a higher burden. But the idea that there is a burden of proof on the coercer, I think, is a very deep part of human morality.

Jason Bedrick: So you’re not saying that there is no role for the government, but that the burden of proof essentially is on the government to explain why it is intervening?

Kevin Vallier: Right.

Jason Bedrick: The burden is not on the parents to say why the government should not intervene.

Kevin Vallier: That’s correct.

Jason Bedrick: Okay.

Kevin Vallier: That’s correct.

Jason Bedrick: So what considerations meet this presumption against coercion more broadly? I’m not just talking about education, but things like nutrition, health, shelter, et cetera.

Kevin Vallier: I’ll try to avoid too much to the details of my view, but effectively to justify coercion, it has to be based on some principle or consideration or value that the person coerced can grasp or see the point of.

And so in this case, when we’re justifying coercion, I can’t coerce you on the basis of my faith at differing very much from yours. But there are certain shared understandings of what’s good for people and what people’s interests are that everyone can recognize as valid.

Now, there’s huge amounts of disagreement about these interests particularly though how they’re weighted against each other. There’s lots of agreement that food, healthcare, all those things are fine.

So their basic interest, interest that any kind of reasonable person can see. Then if state intervention can secure those goods better than non-intervention, then it can be justified to protect those vital interests, especially of children because children can’t make their own decisions.

So if you’re talking about adults, the conditions for intervening are higher because the adult can do a lot to secure those goods themselves. That’s why coercion can be easier to justify in the case of children. Although it’s also the case that the barrier of parents’ rights plays a big role.

Jason Bedrick: Yeah. And on that point, you draw a distinction between the educational interests of children and the educating interests of parents and community. So what’s the difference and how does it matter in this context?

Kevin Vallier: Well, children have an interest in knowing a great deal about the world. And it benefits them in all kinds of ways, just with great value in itself, but also instrumental value and being able to take on certain kinds of jobs or careers. So those are the children’s educational interests.

The educating interests are the interests that parents or communities have in being able to pass on their values. In fact, this is the thing that parents and communities often care about more than anything else, if they’re decent parents and decent communities.
What they want to do is they have a view of the world that provides and orients their life with meaning and value. Having the authority to pass that on from generation to generation is about as deeply ingrained of a feature of human communities going back for probably tens of thousands of years and so far as people were actually developing value systems.

So I think that’s a clear and weighty interest. But they can conflict. You may say, “Well, maybe my values are best passed on if I keep my kids in the dark.”, “Maybe I make sure that they can’t function outside the community.” In that case, you’d have a conflict between the educating and educational interests.

And that’s essentially what Yaffed is accusing many of the yeshivas of doing. So, the educational interests, that’s what those are, educating interests and then the possibility of conflict between the two.

Jason Bedrick: And to clarify, Yaffed is Young Advocates for Fair Education. This is a group of mostly ex-Haredi adults who are arguing that they don’t believe they were provided a sufficiently robust secular education and so want the state to intervene, to force the Haredi yeshivas to provide a certain level of education.

And we’ll get to that in a few minutes, but first, still on this question, it raises the question of, okay, so children have a certain educational interests that the government has a legitimate, maybe even a compelling interest in providing-

Kevin Vallier: Not producing.

Jason Bedrick: Sorry, not producing, but making sure that they at least have access to. So the question then becomes what is the minimum education that children are owed and who gets to decide?

Kevin Vallier: Yeah, so the hope is that some kind of liberal democratic procedure can be used if there’s deep disagreement. However, I do think there are some things that are pretty clear.

One, the minimum educational interest in the liberal society and free society is that people know their basic rights and liberties. So they know that there’s no legal punishment. They’re not going to go to jail or anything like that if they leave. So the fundamental issues that people have these rights.

There’s also, I think, a fundamental interest in just being able to navigate the social world. So I think as a classical liberal, I think freedom of exit, the ability to leave an institution, is a lot more important than effective than a vote.

And I think people should be able to form robust thick communities around their own values, but they can’t raise people to think that they can’t ever exit or maybe that something absurdly radical, like there is no world outside of the community or something. So that would cut them off too much.

And I do think there are some basic linguistic requirements. Though that is something I waffled a bit about as I was developing the paper. I think that, is English language in America required? Or is it enough of them to have developed capacities for language and then what they pick up on their own?

What I’m really worried about with communities and I’m much worried about the state and the private communities is if there was a private community that just systematically deceived children to keep them in the community through violence and brainwashing, that’s a cult. And the state does have an interest in removing children from the Branch Davidians. So that’s for me the minimum.

Jason Bedrick: Okay. Let’s dwell on that language question, though, for a second. Language is obviously important. It’s necessary for the human communication. Every child they need, there’s a very clear interest in having children have acquired some minimal level of a language. And the question becomes, does it have to be the dominant language? And if so, does that mean the dominant language of the nation? Does it suffice if it’s the dominant language of the local community? How large does that community have to be? If the community is defined as 10 people, that person really does not have access to the wider world. So how do we sift these things out?

Kevin Vallier: I think that all we can do and hope to do is to appeal to conventions. It’s the same way that we have to draw arbitrary lines and speed limits.

I don’t think morality itself determine the answers to these questions. So we have to determine the conventions that work. So just to try to do a little work in that direction, one thought is, well, what’s the minimum linguistic mastery that they need to know their basic rights and to navigate outside of their communities if it’s particularly threatening in some way.

The answer is not a huge amount, really, because they can understand their rights through their own language in many cases. It’s also the case that if you were in a large metropolitan area, you’re invariably going to pick up a lot of the basics in order to figure things out. But also, the Jewish community is sufficiently large and diverse in New York City that in those cases, Haredi Jews may be able to navigate themselves without knowing much English.

So I think it’s hard to say in a concrete way, but you try to estimate what would be required for them to grasp their basic rights and to be able to exercise them.

Jason Bedrick: Let’s turn now to the case itself then. So do you believe that the state of New York is justified in interfering with the education of Haredi families at all? And if so, to what extent?

Kevin Vallier: In principle, it could be. It isn’t currently, but in principle it could be. If, for instance, the Haredi yeshivas were, as Yaffed describes, or probably actually would need to be a little worse than that on my view, because of how liberal the view is, it would need to be the case that the state of New York and New York city could effectively intervene to ensure that these schools are equipping children with the knowledge that they need to know their basic rights. Both against their communities, but also against the government too because that’s often much more important to know. I think in a modern Jewish history, obviously knowing rights against the state is going to be more important.

So that’s when they could intervene. If the community was not doing the job and they could show through some impartial means that they were not doing that basic job, that would be the condition under which they could intervene at a minimum.
There’s also questions about vocation, where if the yeshivas were not giving people any vocation that would be basically making it impossible for them to acquire a job. That would also be a problem.

Now, of course, I don’t think the yeshivas are doing this, but that would be the principle in which intervention could be justified. Again, granting that New York state, New York City could actually achieve the goal.

Jason Bedrick: All right. So let’s state for a second that they were justified in interfering. You say it already failed the first prong of the test and really stop there. But let’s say that they actually did meet the first prong of the test and that some sort of coercion was justified.

How about the suggestions that Yaffed raises? And they say, well, we should increase the time spent on secular subjects to a minimum of three hours in elementary schools, two and a half in high school, that they should teach all the state mandated subjects, which was about 12 subjects. We’re not just talking about English language, arts and math and science. They were also talking about health classes and art classes and a number of things that are in there, which by the way, I think most people would agree it is valuable.

Kevin Vallier: It’s about weights. It’s weighting

Jason Bedrick: About weighting. The question is, should they be mandatory? And then, administering the state test, do each or any of these needs your three-prong test?

Kevin Vallier: I don’t think so. One difficulty with what Yaffed is proposing, is that there’d be so many requirements it would effectively greatly dilute the educating and undermine the educating interests of parents. You don’t need that much education in secular subjects in order for people to be able to know their basic rights and navigate their social world.
And also, there’s reasonable disagreement about how much to weight those secular subjects vis-a-vis religious subjects. So the Haredi parents are going to think that religious subjects are the most important, whereas Yaffed seems to think that they’re just subsidiary or at least of equal weight to art classes or something.

But that doesn’t respect the educating interest because part of the educating interests of parents is to be able to determine that weighting of values for their children.

So essentially, Yaffed is being sectarian. Their sense of insisting on a reasonably contestable ordering of values in educating children. It’s also the case that I think that they are underestimating the range of skills. Just doing research for this article, the range of skills that kids in these schools are acquiring is staggering. There’s so much more school. We homeschool my son and I’m reading about this and I’m like, “Getting him to do a couple of hours is tough. At this stage, he doesn’t really need it, but they’ve got knowledge of things and the way the world works and the legal world and all these kinds of things, legal ideas that far outstrip children in New York state.”

So this is one of the things that blew me away. I thought, okay what are these schools? Maybe they really are hurting kids. But then I realized how much staggering amount of education they’re given, I think. Surely these are people who teach themselves some English if they didn’t have it. The level linguistic mastery is, again, staggering.

Jason Bedrick: Right. So they’re speaking Yiddish in their homes and most of the instruction is in Yiddish, but they are diving into texts that are very arcane and hard to parse written in Hebrew and in Aramaic. So they have to have a certain level of familiarity with at least three languages in order to engage with these texts. And as you noted in the paper, these are very high-level texts. These are, you know, college level.

Kevin Vallier: I try to make sense of them each night and I have trouble, a lot of it.

Jason Bedrick: Right.

Kevin Vallier: More than me.

Jason Bedrick: And yeah, starting around middle school, they’re engaging in a very close reading of these texts. So somebody who is trained to read texts in multiple languages very closely and then, again, you’ve got just multiple commentators saying that it should be interpreted this way or that way and then you’ve got super commentaries on those commentaries.

It’s an incredibly complex endeavor. So even if they come away and they are lacking a lot of the content that you would get in a traditional American school, they have acquired some level of skill and a certain patience with sitting with a text for many hours in a row contemplating it, arguing over it with your study partner and in small groups that I think actually would serve them quite well once they go on to college or higher levels of education, even in the secular context.

Kevin Vallier: Yeah. With the acquisition of basic educational virtues, the virtue of being prepared to learn, if you dilute that level of education, parental commitment to that kind of focus could be diminished because they have less value or place less value on it. They think, look, we’re being messed with or interfered with. I assume the groups would just try to work around with the requirements of that.

Jason Bedrick: That’s for a one, a little monkey wrench into your three-pronged test. The test says nothing about public assistance. This issue has been raised in two contexts. One is that the schools themselves get some level of public assistance. Not a great deal. They don’t get any assistance. So there’s no voucher system or anything like that. But the schools are receiving, or at least the children at the schools are receiving assistance when it comes to food. They may get subsidies for transportation, for the security of the building and the adults and children in the building. So should that mean that they are subject to a higher level of instructional control?

Kevin Vallier: I doubt it very strongly. I’m actually very worried that if you allow that principle, then the government could simply tempt people with benefits and then bring them under their control. And I think this occurs.

So the worry is if you accept that principle, receiving public funding for X means control over Y. That cannot be. That principle, if it were consistently applied, would give the government a very powerful tool to get people addicted to them and then to bring them under their control.

So if it were the case, that the yeshiva said, “Hey, give us public money for our schools.” Then it’s more plausible, right? They’re saying, “Look, we need taxpayer money to educate.” And then you’re taking the money and educating them in a faith that most of them don’t hold. And that I think would be a wrong kind of coercion. That would be government fund… But if they’re funding them to eat, that doesn’t mean they get to control education. That’s just not a good principle, I think.

Jason Bedrick: And what about the second point? And the Yaffed raises this and look, there’s arguments over the statistics here. But they say that there’s a higher level of use of public assistance, welfare benefits and whatnot, among Haredi families, vis-a-vis the general population.

So that justifies interfering in these schools to force them to teach things that might make them be able to get higher paying jobs. It’s actually a question for the community, going out there and getting high paying jobs is not a driving value. The communities now happy with the lower paying jobs that allow them more time with their family and more time to study Torah and things like that. So there’s that question. But let’s say that the question was actually want access. Let’s say that they weren’t able to get higher paying jobs. In that case, is there a justified coercion?

Kevin Vallier: I don’t think so either. I think it’s a similar issue that you get public assistance for one thing, and then you lose your liberties over another thing.

Now, when they say they receive more, it’s a new kind of objection. It’s not just that they receive it. It’s unfair. So here’s the argument, really, the best version of the argument is because they receive more, they impose a greater burden on the public and that requires some sort of amelioration or concession of some kind.

But it depends on why there’s extra money. Is it extra money just because of really good lobbying? Or is it extra money just because there are a lot of kids and a lot of the basic needs need to be met?

If it’s the second one that I think now that doesn’t introduce more control. If it’s the first and the community’s actively lobbying for public funds and they’re not just resisting someone else restricting their freedom or something like that, then they’re lobbying for benefits that are coercively removed from other members of the public. That could come with certain kinds of constraints. But the mere reception of benefits just to meet basic interest is not the same.

Jason Bedrick: The argument is actually usually overwhelmed. They are more likely to receive welfare benefits. They’re more likely to be on Medicaid, things like that. But I think the calculus has actually stacked in that they don’t count the foregoing of the public school benefit.

So you might have the Haredi families tend to be quite large. So probably around eight children on average. In New York right now they’re close to $30,000 per pupil that they are foregoing. So we’re talking about, for a lot of families, about $240,000 worth of public assistance that they are foregoing, but they are getting additional public assistance from Medicaid.

And by the way, it’s also worth noting that your qualification for those programs, the income threshold is much higher for families that have lots of children. So more of them qualify even if you were a whole family size constants, they may be earning, let’s say, comparable with the rest of the population. But because they have a larger family size, a larger proportion of them are going to qualify for the benefits.

So these calculations usually look only at these benefits and they don’t look at the hundreds of thousands of dollars that they are foregoing on the other side when they don’t go to the public schools.

Kevin Vallier: There’s also the fact that the parents who are doing the educating in the schools, in many cases, are giving up higher paying jobs. There’s lots of costs that are being paid by the community to live their way of life. But particularly, it’s not just any old costs that you’re pointing to, it’s the foregoing public assistance. So yeah, the idea that they’re more reliant relative to others, yeah, you’d have to do the full cost benefit analysis to get that claim off the ground. There seem to be a gap in their argument.

Jason Bedrick: So going forward, if the Department of Education were to approach you and say, “Dr. Vallier, how should we proceed with this community? What would your recommendations be?”

Kevin Vallier: With respect to me, yes. Doing the homeschooling thing, a hire requires next to nothing relative to other states and certainly relative to other countries.

But I don’t mind a little Zoom exam. I know some parents would because they worry about the incentive effects and stuff like that.
I myself don’t mind a little bit of checking up. But if I were doing huge amount of religious education, and I knew that the authorities were very skeptical of that, then they would be a very different story because I wouldn’t trust them. I would be suspicious of their reasons because I would think that they’re trying to harm my ability to pass on my values to my children.
So it just depends. If it’s like do some math on a test for 15 minutes and then we’ll grade it, that’s fine. But yeah, if it’s this comprehensive threat and particularly if you think it’s a prelude to a greater threat, then yeah, my reaction would be very different.
And the state of Ohio doesn’t seem, in that regard, very aggressive. But the federal government will be a very different story. And if it was my county, it would be even less big of a deal. I can leave the county. It would be annoying but…

The more exit you have from the government that rules you, the less morally problematic their requirements are, I think, all else equal.

But in New York City, in New York state, it’s such a big state and it’s such a big city that, yeah, I would be… And particularly with its current mayor, with the flagrant hypocrisy of the enforcement of the COVID restrictions, I wouldn’t trust them at all.

Jason Bedrick: On the flip side, what sort of advice would you give to families and religious communities that are facing departments of education or other governmental authorities that are trying to exercise more control over the content of their education?

Kevin Vallier: Well, there has to be, first, the assessment of the evidence of a problem. So if the state doesn’t have independent reason to test, and then the complainants come to them, they have to make an assessment of the evidence that meets basic standards of evidence.

And it turns out the Yaffed’s standards of evidence seem to be quite low. So you can imagine, you had a huge amount of secret video in every school and you recorded a random sampling of days and you compile this gigantic file and you transcribed everything or something, that would obviously be horrible intrusion of privacy.
But the point is the standard of evidence could be met. But the question is whether it has in this case and I think the answer is no.

Jason Bedrick: Our guest today has been dr. Kevin Vallier, associate professor of philosophy at Bowling Green State University. He is the author of a chapter in our book, Religious Liberty and Education: A Case Study of Yeshivas vs. New York, titled, “A Defense of Yeshiva Autonomy.” Kevin, thank you so much for joining us.

Kevin Vallier: Well, thank you for having me on.

Jason Bedrick: Kevin, before we go. I know that you have a book coming out that actually relates very much to the subject that we’ve discussed today. Why don’t you tell our listeners about it?

Kevin Vallier: So the book is called, Trust in a Polarized Age. It’s coming out with Oxford University Press on November 10. The big aim of that book is to look at declining trust in government and declining trust in society in the United States and the way I think it’s driving political polarization and political polarization is driving it.

I make a case that the institutions of free societies can restore trust and control polarization in the right kind of way it can do so justly. And a big part of what we’re talking about is the state of trust between the government and a private religious community.
And so I think it would be of interest to your readers. This is a much broader project, but there’s a lot of data on how trust is restored, how it is to be understood and how it relates to institutions. I have a whole chapter in freedom of association that bears directly on this. So readers may find it of interest. So it’s 25 bucks through Oxford’s website.

Jason Bedrick: This has been another edition of EdChoice Chats. If you have any ideas for authors or activists or just interesting individuals you’d like us to interview for the Religious Liberty and Education series, please send them to media@edchoice.org and be sure to subscribe to our podcast. Follow us on social media at EdChoice. And don’t forget to sign up for our emails on our website, edchoice.org. Thank you. We’ll catch you next time.