1. Introduction
Until 2008, there were three types of religious school in Israel:
• religious state schools, which are an integral part of the state's educational system;
• unofficial recognised institutions, which are private schools that receive state funding and are subject to certain rules and regulations; and
• exempt institutions, which receive less financial support from the state than unofficial recognised institutions and are subject only to minimal licensing requirements.
In 2008, the Unique Cultural Educational Institutions Law, discussed below, created the category of ‘unique cultural educational institutions’, which may be viewed as an additional type. The existence of the three different types of school is the result of a long-standing Israeli policy that not only recognises parental rights to educate children according to the parents' religious beliefs, but also provides financial support for exercising such rights. The recognition of multiple forms of religious belief reflects the Israeli solution for one of the central questions with which scholars of multiculturalism around the globe struggle – the extent of autonomy that should be granted to religious and cultural minorities in the area of education, and the desired balance between maintaining some degree of control over minority students' education and excluding certain illiberal practices and values from the public education system.
The Israeli model ties the level of autonomy enjoyed by religious schools with the extent of financial support they receive from the state. Religious state schools are official public education institutions that provide religious state education.Footnote 1 Religious state education is defined in the State Education Law as ‘State Education, with the distinction that its institutions are religious in their way of life, curriculum, teachers and inspectors, and educate to a life of Torah and fulfilling religious duties in accordance with religious tradition and in the spirit of orthodox Zionism’.Footnote 2 Since religious state schools are part of the state education system, their curriculum is determined by the Ministry of Education. Although schools within the state education system have some flexibility with regard to their curriculum, all schools within the state education system are required to follow the core educational programme – goals and values determined by the Ministry of Education – and the Ministry of Education controls the hiring and firing of teachers and instructors. The State Education Law also provided that a Council of Religious State Education should be established, and that the Minister will consult with the Council before taking action regarding state religious schools.Footnote 3 The members of the Council are religious leaders and educators from within the orthodox community;Footnote 4 the community thus has considerable influence and control over acts and policies that concern state religious schools.
The second type of religious school consists of unofficial recognised institutions. The State Education Law allows the Minister of Education to enact regulations for the recognition of unofficial institutions.Footnote 5 Although subject to a certain amount of regulation, unofficial recognised institutions enjoy autonomy in the hiring and firing of teachers, student admission and determination of the curriculum. However, unofficial recognised institutions are required to teach a ‘Core Programme’ determined by the Ministry of Education as a precondition for receiving state support that amounts to 75 per cent of the support received by state schools.Footnote 6
Exempt institutions, the third type of religious school, are non-recognised schools, whereby enrolled students, and their parents, are exempt from the duty to enrol in a recognised educational institution.Footnote 7 The practice by which ultra-orthodox exempt institutions received state support amounting to 55 per cent of the support received by state schools, without being required to teach the Core Programme, was declared unconstitutional by the Israeli Supreme Court sitting as the High Court of Justice in 2008 because it amounted to distribution of state funds without the application of clear and equal criteria.Footnote 8 However, the Unique Cultural Educational Institutions Law was enacted in 2008 to circumvent the Court's decision by allowing the Ministry of Education to recognise schools serving the ultra-orthodox community as ‘unique cultural educational institutions’, exempt from the requirement to teach the Ministry's Core Programme.Footnote 9 Under this Law, the state may fund students who attend unique cultural educational institutions at the rate of 60 per cent of the funding awarded to students attending state schools.Footnote 10
Ultra-orthodox unofficial recognised institutions and exempt institutions have always maintained separate educational institutions for boys and girls. The position is more complex with regard to religious state schools. In the past, some of these schools were coeducational, others maintained separate classes for boys and girls in the same school, and some were single-sex schools. This was the case for both elementary and post-elementary levels. Over the years, however, there has been a shift towards separation in religious state schools. In the post-elementary level, almost all schools today are separate. In the elementary level, many schools are still coeducational, but there is a clear trend towards separation of boys and girls into different classes within one school.Footnote 11
The only official document that refers to the question of whether a school can conduct sex-based separate classrooms, and how such separation can be conducted, is an internal 1999 single-page Ministry of Education memorandum. This document states that separation will take place only in schools where there is an ‘explicit will’ of the parents and where pedagogical conditions allow for separation that will result, in general, in no fewer than 21 students per class.Footnote 12 The memorandum describes briefly the procedure for requesting separation, based on the assumption that separation will result in more classes and thus require the allocation of additional teaching resources.Footnote 13 The memorandum does not contain a guideline for determining the parents' ‘explicit will’ or the manner of separation; nor does it outline the strategy if some parents support separation while others object to it.
In many schools, separation was initiated by parents; in others it was at the initiation of a school principle or a supervisor, a community leader or a rabbi.Footnote 14 While there is a vibrant internal discussion within the orthodox community on the need and desirability of separating boys and girls in education, the Ministry of Education has not taken an official position on the issue. This article argues that since there are at least some potential reasons to be concerned with the effects of separation on equality, guidelines should be established to ensure that equality is not violated in the process.
The article proceeds as follows. Section 2 examines the effect of single-sex education on equality. It examines the history of single-sex education and the religious and pedagogical justifications for single-sex education. Section 3 examines the legal issues that arise under single-sex education. It examines the US Supreme Court's decision in United States v Virginia and the subsequent regulations published by the US Department of Education in 2006, both of which attempt to offer criteria for evaluating the compatibility of single-sex educational arrangements with the principle of equality. Section 4 examines the issue of single-sex religious education and the applicability of the US criteria to religious schools in Israel.
2. The Effect of Single Sex Education on Equality
2.1 The History of Single-Sex Education
In analysing the effect that single-sex education has on equality, it is important to consider the historical development of the current educational landscape. Single-sex educational institutions exist today in many countries, and in most they preceded coeducation. In many countries, girls and women's educational institutions were established following the establishment of educational institutions for boys and men and were, in many respects, inferior to them.Footnote 15 Before the rise of public education, schools and institutes of higher education were established by private bodies and, commonly, by religious societies. The division between boys and girls in educational institutions established by the latter was created as a result of modesty considerations and in the belief that men and women had different social roles that required different education and training. Indeed, the educational curriculum of the institutions corresponded to the social role that each sex was expected to fulfil.
The historical reasons for separating men and women in the area of education were thus incompatible with contemporary notions of equality. While this does not imply that there are no justifications for separating men and women in education that may be compatible with equality, it does suggest that, since the history of single-sex education is a history of exclusion, single-sex institutions and arrangements, especially if they are long-standing, should be examined with caution.
2.2 Religious Justifications for Single-Sex Education
Although the particular justifications for separating boys and girls in educational settings are conditional upon the different religions, two main justifications can be found in at least the three main monotheistic religions: modesty considerations and societal gender roles.
The incompatibility of societal gender roles with the principle of equality is self-evident. Under the principle of equality, men and women should be able equally to pursue all opportunities and fulfil any private or public role. Patriarchal religions, however – such as orthodox Judaism, Islam and certain Christian denominations – reserve spiritual and social leadership to men,Footnote 16 leaving women excluded from the political and public domains, remanded to responsibility over the domestic sphere. Since one of the main goals of education is to prepare children for adult life, single-sex education, in these communities, facilitates the preparation of boys and girls towards their respective adult roles.
The incompatibility of modesty considerations with equality may seem less intuitive, since separation between men and women does not in itself mean according them a different status or social roles. The notion of modesty in patriarchal societies, however, is largely based on perceiving female sexuality as a temptation and as a threat.Footnote 17 In orthodox Judaism, a central aspect of the notion of modesty is the concept of ‘hirhurei aveira’ (improper thoughts). Sexual desire is perceived as a driving force, as well as a destructive one, and must be controlled.Footnote 18 Although the notion refers, in general, to both sexes, many religious leaders assume that men are more prone towards improper thoughts. Since an immodest woman may lead a man to improper thoughts, women are under a duty to refrain from tempting men.Footnote 19 Another aspect of the notion of modesty derives from the perception of female menstruation as impure; hence the prohibition against any form of physical contact with a woman during her menstruation. Since it is impossible to know whether a woman is menstruating, some orthodox Jews refrain from any physical contact with all women, and separation in the public sphere makes it easier to avoid physical contact.Footnote 20 To a large extent, then, men are regarded as the subjects of modesty rules, while women are perceived as the objects.Footnote 21
2.3 Pedagogical Justifications for Single-Sex Education
The effect that single-sex education has on the achievements of both boys and girls, and the desirability of adopting single-sex education in public schooling are highly contested among educators in general and among feminist educators and scholars in particular. While some feminists support single-sex education, others strongly object to it.
Many of the feminist supporters of single-sex education are women who had a positive personal experience in single-sex schools,Footnote 22 and often rely on qualitative research that discusses the positive experiences of students in all-girl schools. Rosemary C Salomone, for example, describes in detail the supportive educational environment provided for girls in three girls-only schools in the United States and the effect the all-girl environment has on the students' motivation, self-esteem and educational achievements.Footnote 23 Salomone notes that, in all three schools, students indicated that the absence of boys relieved them from social pressures, while at the same time it created a feeling of camaraderie.Footnote 24 All three schools put special emphasis on providing female role-models and intergenerational ties between graduates, and encouraging the students to ‘ask questions’, to ‘take initiative’ and to become more ‘outgoing and aggressive’.Footnote 25
Quantitative research on the advantages of single sex-education produces a more complex picture. In 2005, a systematic review of the existing scholarship comparing single-sex education and coeducational schooling was prepared for the US Department of Education. The review produced equivocal results.Footnote 26 The authors of the review did not conduct the research themselves, but examined studies conducted by other researchers, mostly among high-school students.Footnote 27 The studies compared single-sex schools with mixed sex schools, but did not examine the effect of separating students into single-sex classes within the same school. The authors of the review also noted the tendency to research girl-only schools, making it difficult to evaluate the effect of single-sex education on boys. The review found that single-sex schooling had a minimal to medium positive effect on concurrent, quantifiable academic accomplishments,Footnote 28 although no similar effect could be established with regard to long-term quantifiable academic accomplishments.Footnote 29 The findings with regard to fields such as student adaptation and socio-economic development produced mixed results, with different studies supporting positive effects of single-sex education on various aspects of these domains, or showing no difference between single-sex and coeducational schooling.Footnote 30 Quantitative studies using gender equity as an outcome variable were not available; nor were there other studies that examined the effects of single-sex schooling on teen pregnancy, later performance in college, differential treatment by teachers, parental satisfaction, bullying in school or teacher satisfaction.Footnote 31 The authors of the review emphasised that there was very little quality research on all of the questions examined and acknowledged that, while there was some indication that single-sex education had positive effects on immediate academic achievements, it was difficult to draw conclusions about its general desirability from the studies that were reviewed.Footnote 32
A recent article published in Science magazine criticised the review, referring to it – as well as to other studies that advocate single-sex schooling based on ‘the different ways that boys and girls learn’ – as ‘pseudoscience’.Footnote 33 The authors of the article argue that ‘little overall difference’ is found between single-sex and coeducational schooling regarding academic outcomes. Moreover, they opine that ‘although single-sex outcomes may at first appear promising, apparent advantages dissolve when outcomes are corrected for preexisting differences’.Footnote 34 Factors such as higher earlier transfer rates in single-sex schools, an innovative curriculum that sparks motivation and bias also affect the results of these studies. The authors of the article take special issue with those who argue that physiological differences between boys and girls affect the way in which members of each sex learn, and therefore warrant different methods of study. ‘Neuroscientists have found few sex differences in children's brains beyond the larger volume of boys’ brains and the earlier completion of girls' brain growth', they argue, ‘neither of which is known to relate to learning’.Footnote 35
These examples demonstrate the highly controversial and contested nature of the studies that purport to compare single-sex schooling with coeducation. Many of the available quantitative studies are arguably methodologically or statistically flawed, or address only some outcomes of single-sex schooling. Other studies indicate that single-sex education has different effects across social classes, but not enough data is available to offer conclusive findings indicating these differences. Because of the interrelationship between the separation of boys and girls and other variables, and the non-existence of even two educational institutions that are identical in every manner other than in being single-sex or coeducational, it is difficult to isolate the effect that studying in a single-sex environment has on educational achievement. Qualitative studies indicate that, at least under certain constraints, single-sex schooling is experienced by girls as empowering. However, such studies focus almost exclusively on the experience while being at girl-only schools, and do not examine the long-term implications of the experience or the maintenance of the sense of empowerment after graduation.
Opponents of single-sex education thus point to the inconclusive evidence of its advantages, while proponents rely on the positive effects found in some quantitative studies and on qualitative research, and in real-life experiences of female students. Opponents and proponents also differ in their explanations for the positive outcomes of single-sex education where such outcomes are found. While many opponents acknowledge that there are, indeed, some excellent single-sex schools, they claim that this is as a result of the special attention and resources devoted to the advancement of girls in these schools and that the same results could be achieved by investing similar resources in coeducational schools. They argue that separating students on the basis of gender reinforces gender stereotypes and sends students the message that ‘sex is a core human characteristic’Footnote 36 and, most importantly, that it prevents boys and girls from learning to co-operate in a purposeful, supervised environment, thus failing to prepare them for ‘mixed-sex workplaces, families, and citizenry’.Footnote 37 Proponents of single-sex education are sceptical about the ability to replicate the advantages offered by single-sex education in coeducational settings because of both practical difficulties and social conception and biases that affect not only teachers but also the students. Proponents, therefore, argue that single-sex education should at least be a viable option for those parents and students who are interested in pursuing it.
3. Framing Single-Sex Education as a Legal Equality Issue: The US Experience
3.1 The Case of United States v Virginia
Despite the potential incompatibility of single-sex schools with the principle of equality, the presence of single-sex schools in many countries is often accepted as a fact simply because of their long-standing historical existence. In many countries, the law does not address the issue of single-sex schooling; in others, the law recognises their existence but does not attempt to address the potential equality issues that they raise.Footnote 38 A prominent example of a case in which single-sex education was examined from a legal perspective is United States v Virginia.Footnote 39 In 1996, when the case was decided, the Virginia Military Institute (VMI) was the last public higher education institution in Virginia to maintain a male-only admission policy. The constitutionality of the VMI's admission policy reached the US Supreme Court after it was declared unconstitutional by the Court of Appeals for the Fourth Circuit on the grounds that it violated the Equal Protection Clause of the US Constitution. In an attempt to rectify the violation, following the Fourth Circuit's ruling, the VMI established a parallel women's institution, the Virginia Women's Institute for Leadership (VWIL). The Supreme Court determined, however, that the VWIL did not offer women the same opportunities that the VMI offered men, and that the two institutions were incomparable; thus admittance to the VWIL could not serve as a proper alternative for admittance to the VMI.
The decision in US v Virginia was based predominantly on the ‘separate but equal’ paradigm, rejected as unconstitutional in the landmark case Brown v Board of Education (Brown).Footnote 40 The US Supreme Court in Brown struck down the ‘separate but equal’ doctrine, determining that in the field of education ‘separate but equal’ is inherently unequal. The court in Brown was of the opinion that, even if all factors and characteristics of separate classes or schools were equal, separation would still be unconstitutional because it is based on a perception of black children as inferior to white children. This decision was the basis for the racial desegregation of the United States school system and is often celebrated as the case that paved the way for the civil rights movement. In US v Virginia, the Court examined the faculty, curriculum and facilities of the VWIL and determined that they were inferior to those offered by the VMI. As opposed to the decision by the Brown court with respect to racial segregation, the Supreme Court in US v Virginia did not outlaw the ‘separate but equal’ doctrine in the context of separation based on sex in the area of education.
Notably, the Court in US v Virginia compared not only the tangible characteristics of both institutions but also the intangible characteristics, such as the prestige and alumni networks of each school, and determined that they were not comparable. In particular, it noted that the VWIL did not have the established alumni network that the VMI had. The Court noted that being part of the closely knit alumni network, which included members who had achieved high positions in both the public and private sectors, was one of the main advantages of studying at the VMI. By incorporating the intangible characteristics into the comparison, the Court diverged from a formalistic interpretation of the ‘separate but equal’ test in favour of a substantive examination that takes into consideration existing social disparities in power and status between men and women.
A number of explanations may be offered for the difference between the approaches in Brown and US v Virginia. One explanation will point to the fact that gender-based classifications are not subject to the same level of scrutiny in American constitutional law as classifications based on race. While race-based classifications are subject to strict scrutiny, gender-based classifications today are subject only to intermediate scrutiny, which is a lower standard of scrutiny.Footnote 41 The rationale and justification for this difference has long been debated among feminist scholars. Many scholars agree that the difference between the two types of classification can, in part, be explained by the fact that gender differences, and the ways in which they affect people's abilities and experiences, are perceived by judges as more ‘real’ than differences between races,Footnote 42 and it may therefore be more justified for the law to address these differences.
A different explanation is rooted in the critiques to which the Brown decision has been subject over the years. Critics of Brown have long argued that the underlying assumption of the decision – which is that separation necessarily ‘sends a message of inferiority’ to black children, and thus reinforces inferiority stigmas – fails to consider the possibility that studying separately from white students may, in certain cases, foster a sense of pride among black children and serve as a tool of empowerment.Footnote 43 Critics have also pointed out that the Brown rationale had the potential to curtail any recognition of cultural and linguistic rights in the area of education. The challenge that US v Virginia presented, then, was how to identify those educational arrangements that are not humiliating and are compatible with the principle of equality. In US v Virginia, however, the Court did not delve into this question since, as indicated above, it had determined that the ‘separate but equal’ criterion was not met.
3.2 The US Department of Education 2006 Regulations on Single-Sex Education
Following US v Virginia, and in response to a growing interest in single-sex education, in 2006 the US Department of Education amended the regulations implementing Title IX of the Education Amendments of 1972 that prohibit sex discrimination in federally assisted education programmes and activities (2006 Regulations).Footnote 44 While US v Virginia discussed separation on the basis of sex in higher education, the regulations focus on elementary and post-elementary schools.Footnote 45 The influence of the US v Virginia decision on the drafters of the 2006 Regulations is evident in the language of the regulations, and the Department explicitly referred to US v Virginia in the explanatory material.Footnote 46 The purpose of the 2006 Regulations is to offer more flexibility in providing public single-sex education, which was previously subject to strict requirements imposed by guidelines published in 2002 in accordance with the No Child Left Behind Act of 2001.Footnote 47
The 2006 Regulations specify the conditions under which single-sex education is considered to be compatible with the prohibition against discrimination on the basis of sex as defined in Title IX of the Education Amendments of 1972. While the Department of Education did not take an explicit stance on the advantages and desirability of single-sex education, its determination to allow single-sex education reflects the position that such education may be beneficial for both male and female students and, when executed in a certain manner, may be compatible with the equality requirements of Title IX.Footnote 48
The 2006 Regulations contain several central principles. First, they distinguish between the availability of single-sex programmes or classes in mixed schools and the existence of single-sex schools. With respect to single-sex programmes or classes in mixed schools, there are three requirements: (i) a valid justification for separation, (ii) substantial equality in education, and (iii) voluntary participation in single-sex classes. Coeducational schools that wish to offer single-sex classes or activities must provide justification for the separation. The 2006 Regulations require the separation to serve an important governmental objective (for public recipients of federal funds) or an important educational objective (for private recipients of federal funds).Footnote 49 The relevant objective is defined as improving ‘the educational achievement of students’ through ‘a recipient's overall established policy to provide diverse educational opportunities’ or to ‘meet the particular, identified educational needs of its students’, provided that ‘the single-sex nature of the class is substantially related to achieving that important objective’.Footnote 50
The Department has explained in the Supplementary Material that the idea embodied in this requirement is that recipients be allowed to offer single-sex classes or activities in those cases where they conclude that such classes or activities may improve the educational outcomes of some students as one of the diverse educational options offered to parents, implying that a recipient must demonstrate a general commitment to providing diverse education options, with single-sex education being just one of these options.Footnote 51 The Department stressed that the justification for offering single-sex classes or activities must be genuine and cannot be based on ‘overbroad generalizations about the different talents, capacities or preferences of male and females’. Recipients are required to conduct internal evaluations every two years to ensure that the important objective that separation is aimed to serve is indeed being fulfilled.
The second main requirement imposed by the 2006 Regulations regards the manner in which schools treat students of both sexes. Recipients are required to treat students of both sexes ‘evenhandedly’ and to ensure that students of both sexes are offered ‘substantially equal’ classes and activities,Footnote 52 with ‘substantially equal’ coeducational alternatives offered in all cases. Recipients may even be required to provide students of the excluded sex a single-sex alternative in addition to the coeducational alternative. The Regulations provide a long, non-exhaustive list of factors that will be examined aggregately by the Department in assessing the substantial equality of classes or activities. These factors are both tangible and intangible.Footnote 53
The third main requirement imposed by the 2006 Regulations is that enrolment in single-sex classes be completely voluntary. The Department has interpreted this requirement to imply that an equivalent coeducational alternative to any single-sex class must be available and made known to parents.Footnote 54
The legal standards for offering single-sex schools differ from the standards for offering single-sex classes or activities – the main difference being that recipients are not required, under the 2006 Regulations, to provide a justification for offering a single-sex school. The Department has indicated that this difference is because admission to non-vocational elementary and secondary schools is not covered by Title IX; it therefore lacks the authority to examine the justification for offering single-sex schools. A recipient that operates more than one school and offers a single-sex school is required to offer a substantially equal school, which may be single-sex or coeducational, to students of the other sex. Enrolment in single-sex schools must be voluntary. It is important to note that recipients offering single-sex schools may still face a constitutional challenge regarding the offering of such schools under the Equal Protection Clause.
3.3 US v Virginia and the 2006 Regulations: Separation, Equality and Human Dignity
The 2006 Regulations attempt to offer conditions for a model of single-sex education that is compatible with the principle of equality as developed in US v Virginia. I indicate above that the US v Virginia decision rests, to a large extent, on analysis of the ‘separate but equal’ formula and that, as opposed to Brown, the Court in US v Virginia did not rule the ‘separate but equal’ formula to be unconstitutional in the area of education with regard to sex. While the US v Virginia Court did not discuss the reason for the different treatment of the ‘separate but equal’ formula explicitly, a close reading of the case in comparison with Brown reveals that the connection between separation and humiliation, which is the basis for invalidating the ‘separate but equal’ doctrine in Brown, is absent from the US v Virginia decision. While the women in US v Virginia were considered by the Court to be excluded from a valuable educational opportunity, they were not viewed as being humiliated by the exclusion in the same manner as the plaintiffs in Brown.
While US v Virginia does not reject the ‘separate but equal’ model with regard to separation between men and women in the area of education, it subjects single-sex educational arrangements to a substantive standard of equality by requiring equality in the intangible benefits that students in both institutions enjoy. These intangible benefits derive from the social status of men and women. As long as women and men are not equal in society, the intangible advantages of studying in women-only and men-only institutions are unlikely to be equal. The notion of dignity, or substantive equality, is thus incorporated via the requirement of equality into the intangible benefits obtained by studying in male-only and in female-only schools.Footnote 55
The 2006 Regulations both reflect the underlying implication of US v Virginia – according to which ‘separate but equal’ may be compatible with equality, at least to a certain extent and under certain conditions – and elaborate on these conditions. As indicated above, in addition to the requirement that the classes and activities offered to both sexes be ‘substantially equal’, the Regulations also consider the justification for the separation. The Regulations require that separation serves an important objective and they prohibit separations that are based on stigmas and stereotypes as to the capabilities and preferences of men and women. The requirement that the justification serves an important objective is part of the ‘intermediate scrutiny’ test. The relevance of the justification for separation may be especially high in the area of education in light of the fact that qualitative research that supports the advantages of single-sex education regards, for the most part, schools and programmes that consciously address the particular educational needs of students and attempt to remedy disadvantages that are tied to sex.Footnote 56 While having a valid justification for separation is not a sufficient condition for ensuring that the outcome of the separation does indeed promote equality, the fact that many of the qualitative studies that support the positive impact of single-sex education were conducted in institutions that embraced the empowerment of girls as a goal suggests that it may be a necessary condition. While the Department has not taken a stance on the soundness of each of the various theories that claim that male and female students learn differently, it may be required to do so when examining whether there is a violation of the prohibition on justifications that are based on stigmas and stereotypes. To the extent that such theories are viewed as correct, separation based upon them will be valid. If they are incorrect, however, separation based upon them may be viewed as based on generalisations and stereotypes.Footnote 57
The voluntary admission requirement, which notably was not discussed in the US v Virginia decision, reflects the perception that one of the factors that distinguishes between humiliating and empowering separations is that, while voluntary separation is not necessarily always empowering, enforced separation is inherently humiliating. The requirement to provide an equivalent coeducational alternative is meant to ensure voluntary choice.
In addition to objecting to the premise of the Regulations, human rights organisations have also expressed concern regarding the real-life implementation of the Regulations and the ability of the Department to ensure compliance, stating that the Regulations do not provide for enough supervision mechanisms to ensure that there would not be involuntary placement in single-sex programmes.Footnote 58 Particular concern was raised with regard to schools not offering equivalent coeducational alternatives as required by the Regulations.Footnote 59
To summarise, the criteria determined by US v Virginia and the 2006 Regulations for distinguishing between prohibited and permitted single-sex is (i) the objective of separation between men and women, (ii) whether enrolment in single-sex classes or schools is a result of free choice, and (iii) the manner in which the separation is executed with regard to content and facilities.Footnote 60
4. Gender Equality and Religious Schools
4.1 The Relevance of US v Virginia and the US 2006 Regulations to Religious Schools in Israel
The right to equality is recognised under Israeli constitutional law, at least partially, as part of the right to human dignity; it thus enjoys the status of a constitutional right.Footnote 61 In this section, I examine the applicability to religious schools in Israel of the right to equality and, in particular, those elements of equality that the 2006 Regulations seek to protect. The discussion is two-fold: first, I sketch the relevant normative framework by discussing Israeli law regarding both the application of the principle of equality to religious schools and the legality of separation between men and women in other areas of life. I then continue to examine the manner in which the three main components of US v Virginia and the 2006 Regulations – namely, the purpose of the separation, free choice with regard to enrolment in single-sex programmes, and actual equality – fit within this framework.
Opposition to holding Israeli religious schools to the US legal standards can rest on two contradictory arguments.Footnote 62 It may be argued that state support of religious schools reflects a political decision to recognise and support at least a certain degree of autonomy of cultural and religious groups in the area of education. Separation between men and women in religious schools is a by-product of the autonomy awarded to religious groups. If such autonomy is to be taken seriously, the state has no function in upholding these schools to liberal standards of equality. Moreover, intervention may amount to infringement upon the group's right to culture and the right of parents to educate their children in accordance with their beliefs.
On the other hand, it may be argued that upholding religious schools to the US standards is pointless. Since separation between men and women in religious school systems is based upon a stereotyped world view of the roles men and women play in society, such educational systems are inherently discriminatory.Footnote 63 Application of any liberal standards of equality and choice to such schools would be artificial and, if anything, will only serve to legitimise educational arrangements that should be forbidden altogether.
Neither of these claims is, I believe, correct. As the cases discussed below demonstrate, both the right to equality in education and the importance of equality between men and women have been recognised in Israeli law. As discussed above, however, Israeli law also recognises the right to denominational education and has granted religious schools varied degrees of autonomy in determining the school's curriculum and deciding on the admission of students. The current Israeli policy today is to publicly fund denominational schools, with the degree of funding depending on the percentage of the Core Programme taught.
The question that needs to be answered concerns the overlap between the right to gender equality and the right to denominational education, and the manner in which the two rights should be balanced. Interestingly, examples from other countries demonstrate that even laws that address each of the two rights separately do not explicitly address their interrelation. The United Kingdom (UK) Equality Act 2010, for example, provides single-sex schools with an exemption from the prohibition to discriminate on the basis of sex with regard to admission, but does not provide mixed-sex schools any exemptions from the prohibition to discriminate on the basis of sex, thus implying that when boys and girls attend the same school, they should be treated equally.Footnote 64 In a separate exemption, however, the Act provides religious schools with exemptions from the prohibition to discriminate with regard to admission, providing education for pupils and providing pupils access to a ‘benefit, facility or service’, ‘as far as relating to religion or belief’. The Act also states that the prohibition on discrimination with regard to providing pupils with education and access to benefits, facilities and services does not apply ‘in relation to anything done in connection with acts of worship or other religious observance organised by or on behalf of a school’. The Act does not explicitly address the question of whether different treatment on the basis of sex can be argued to be ‘relating to religion or belief’ and thus be encompassed by the religious exemption.
The section below will examine this question in the Israeli context, based on existing Supreme Court rulings regarding the application to religious schools of the right of equality. An exemption from the prohibition to discriminate on the basis of religion is already embedded in the autonomy granted to some religious schools in the area of student admission. The question of whether additional exemptions should be granted in the area of sex discrimination is complex and multifaceted. The US criteria, as defined in US v Virginia and the 2006 Regulations, provide a helpful starting point for thinking about this question in that they break the question of sex equality in education into different segments and present its different aspects. Addressing each of these aspects separately allows for a more accurate and nuanced analysis of the issues at stake.
4.2 Exempt and Unofficial Recognised Institutions
4.2.1 Scope of Autonomy
Two recent decisions of the Israeli High Court of Justice (HCJ) discuss the applicability of the principle of equality to unofficial recognised institutions in Israel. While these decisions do not deal with the issue of gender discrimination but rather with discrimination on the basis of race and ethnic origin, they are important for understanding the limits imposed upon the autonomy of unofficial recognised institutions by the principle of equality. The first is the controversial case of Noar Kahalacha v Ministry of Education (Noar Kahalacha).Footnote 65 In this case, the parties disputed the legality of the physical and pedagogical separation in an unofficial recognised institution for girls in Israel, which resulted in creating two separate tracks – the students in one being mostly of Ashkenazi origin,Footnote 66 and in the other mostly of Sephardic origin.Footnote 67 The petitioners argued that the separation was based on ethnicity, and was thus forbidden. The respondents argued that it was based on the level of strictness in religious lifestyle, and was thus permitted. The Court accepted the petitioners' position and ordered the school to remove all types of separation between the students.
The second case is Tebekah v Minister of Education (Tebekah),Footnote 68 which concerned the admission of children from Ethiopian descent to unofficial recognised institutions. The Court in Tebekah reaffirmed and emphasised the applicability of the principle of equality to all schools in Israel: state schools, unofficial recognised institutions and exempt institutions. The Court indicated that discrimination in admission to schools infringed upon the general right to equality, the right to equality in education and the right to human dignity. While ‘the Israeli legal system recognises the right of different sectors to maintain their unique characteristics’, explained the Court, ‘all sectors are obliged to respect the basic principles of democracy, which include the right to education, the right to equality and the human dignity of the child’.Footnote 69
The purpose of the separation stood at the centre of the Noar Kahalacha decision, in which the Court characterised the main issue as a conflict between two rights. The first is the right to denominational education, perceived as including both the right of the community to establish and operate schools that are consistent with their beliefs and the right of parents to send their children to such schools. The second is the right to equality. The Court determined that ‘the principle of equality is a cornerstone of our education system, without which it is not possible to have a proper education system’.Footnote 70 Justice Levy's suggestion for how the two rights should be balanced is based on whether the ‘distinction serves the purpose – namely the right to denominational education – in a relevant manner’.Footnote 71 In Tebekah, the Court narrowed the scope of permitted distinction to include only distinctions that are absolutely necessary for the existence of the educational institution, without which the sectorial uniqueness would no longer exist.
The Noar Kahalacha and Tebekah cases consider the criteria for admission based on the presumption that unofficial recognised institutions were granted autonomy for a particular purpose – namely to provide education that is compatible with a religious lifestyle. Distinctions that were necessary to serve this purpose were, in general, permitted. Distinctions that were not necessary to achieve it were, in general, prohibited. For the most part, this presumption was accepted by both parties, which is why the dispute revolved around the reasons underlying the separation.Footnote 72 The petitioners argued that the different treatment was based on ethnicity. The respondents argued that it was based on religion.
4.2.2 The Justification for Single-Sex Religious Education in Ultra-Orthodox Schools
As indicated above, one of the conditions under which, in the United States, the 2006 Regulations permit sex-based separation is that the separation serves a legitimate educational goal. Separation between the sexes in ultra-orthodox education in Israel is based on religious and cultural grounds: namely considerations of modesty and the goal of preserving a religious lifestyle which accords different roles to men and women. However, as indicated above, Israeli law recognises a right to religious education which may include certain practices incompatible with equality that satisfy the Tebekah test. In Noar Kahalacha and Tebekah, the Court was not convinced that separation indeed fulfilled this test. The decision of the Court rests, at least to some extent, on its rejection of the genuineness of the religious argument and on presenting religious and racist justifications as inherently separate. The cases do not explicitly address the possibility of genuine religious arguments that are based on race or ethnicity, although the strong condemnation of the practices examined by the Court indicate that it is unlikely that such arguments would be deemed acceptable. The questions that need to be answered regarding the permissibility of single-sex education, then, are whether it fulfils the Tebekah test and, if so, whether it should be permitted.
It is arguable that separation between men and women in schools that serve the ultra-orthodox community does indeed fulfil the Tebekah case by being ‘absolutely necessary’ to preserve the ‘uniqueness of the education’ provided by such schools. The question of how to decide which practices are ‘absolutely necessary’ to preserve the ‘uniqueness of the education’ is complex and potentially explosive. One possibility is to adhere to the community's own answer. Even if the issue of who can speak on behalf of the community could be resolved, Noar Kahalacha and Tebekah demonstrate the disadvantages of this approach, as community leaders may use religious justifications as a disguise for other justifications. Assuming that the solution of resorting to the religious community's own testament is rejected, the decision of which practices are ‘absolutely necessary’ will be made by the courts, which are institutions external to the community. The statements of religious leaders will certainly play a role, although not always a conclusive one. The history and prevalence of a particular practice within a religious community is among the criteria that will be examined.
In the ultra-orthodox community, educational institutions have always been separate, and the values underlying separation, although incompatible with the principle of equality, are an essential part of life. While one may presume that not every discriminatory practice that satisfies the Tebekah case will be permitted by the courts, the following factors tip the scale, I believe, in favour of allowing separation between boys and girls in ultra-orthodox schools, despite its incompatibility with the right to equality:
• the deep cultural and religious roots of separation in ultra-orthodox Jewish communities;
• the harsh implications for the ultra-orthodox community of prohibiting separation;
• the existence of many single-sex religious educational institutions around the world; and
• as will be discussed further below, the fact that, at least today, there is endorsement of the separation by virtually the entire ultra-orthodox community.
In addition to being prohibited under the general right to equality, separation between men and women is also prohibited under the Prohibition of Discrimination in Products, Services, and Entry into Places of Entertainment and Public Places Law (Prohibition of Discrimination Law).Footnote 73 This Law was enacted in order to apply the principle of equality to people or bodies that provide a public service or product, or operate an establishment that serves the public. The Law prohibits discrimination on the basis of a number of categories, including the basis of sex. It also includes, however, an explicit exception for certain types of separation between men and women. Section 3(4)(3) of the Law determines thatFootnote 74
the existence of separate arrangements for men and women will not be considered discrimination where failing to separate between men and women will prevent part of the public from receiving the product or the service, entering a public place or receiving a service in a public place, as long as the separation is justified taking into consideration the nature of the product, the service or the public place, its necessity, the existence of a comparable alternative and the needs of the public that may be injured as a result of the separation.
The exception in section 3(4)(3) of the Law reflects recognition that practices of separation between men and women in various areas of life are common among religious communities in Israel and, in particular, within the ultra-orthodox Jewish community. The Law does not state explicitly, however, in which areas separation may be permitted and provides instead a general test for distinguishing between permitted and prohibited separation.
The test provided for in section 3(4)(3) incorporates several different components. The initial justification for allowing separation is that failing to allow separation will result in part of the public not receiving the service, because one of the sexes will be excluded in order to prevent contact between men and women. While this justification reflects a practical concern for the enjoyment of public services by all, the claim that a discriminating practice should be allowed in order to prevent even worse discrimination is, as a normative claim, at the very least troubling, because it is based on an assumption that the state has no means of preventing the latter discrimination. Even if the justification itself can be accepted, the Law does not provide clear guidance for identifying whether the ‘necessity’ of the public service and ‘the existence of a comparable alternative’ justify a particular separation. On the one hand, if the goal of the exception is to ensure that everyone receives necessary services, the ‘necessity’ of a service is reason to permit separation. On the other hand, discrimination with regard to a necessary service is particularly offensive.
The test developed in the Noar Kahalacha and Tebekah cases rests, to a large extent, on the same rationale as the exception prescribed in section 3(4)(3) of the Prohibition of Discrimination Law. Tebekah is based on the assumption that some compromises of equality may be required in order to enable the existence of meaningful denominational education. While the Tebekah test is general, the Prohibition of Discrimination Law provides for exceptions only with regard to distinctions on the basis of sex.Footnote 75
Both the Tebekah test and the exception provided for in the Law are based on a factual– empirical test that examines the implications of prohibiting a particular separation. Past practices serve as important indications in evaluating what such implications would be. Indeed, in a petition against the practice of segregation between men and women on public buses, petitioners argued that separation was a relatively new phenomenon, and that the fact that ultra-orthodox Jews around the world continue to use mixed public transportation indicated that separation was not warranted to enable the ultra-orthodox community to enjoy public transportation.Footnote 76 Education, on the other hand, is and always has been separated in ultra-orthodox communities, which may validate separation both under the Tebekah test and under the exemption provided for by the Prohibition of Discrimination Law.
4.2.3 The Requirement of Voluntary Enrolment
The second criterion under US law for single-sex education to be permitted is that students' participation in such programmes must be a result of free choice; in other words, students cannot be assigned to such programmes against their will. As indicated above, in some circumstances this requirement has been interpreted as imposing upon the school or institution an obligation to provide a substantially equal coeducational alternative.Footnote 77
The reliance on choice, criticised by many scholars of multiculturalism,Footnote 78 is especially problematic in the context of education since the term ‘choice’ often refers to the choices that parents make with regard to their children's education. In Israel, as well as in most liberal countries, the state has a duty to respect such choice.Footnote 79 However, the right of parents to direct their children's education is not absolute. In the triangular relationship among parents, children and the state, the state has both a legitimate interest in the children's education and a duty to protect them. The question, as exemplified in Noar Kahalacha, is thus one of balancing interests.
Even putting these issues aside, requiring ultra-orthodox institutions to provide a coeducational alternative is unlikely to yield any practical implications since separation between men and women in education is so deeply embedded in the ultra-orthodox community that no parents, and presumably very few children, will choose coeducational schooling.Footnote 80
It is important to stress that separation between men and women in other areas of life is more controversial within the ultra-orthodox community, and applying the choice criterion in these areas may be more relevant. The controversy arising out of the recently decided case of Ragen v Ministry of Transportation (Ragen), for example, surrounded de facto separation between men and women on public buses operating in ultra-orthodox neighbourhoods, mainly in Jerusalem.Footnote 81 In buses with separation, men sat in the front rows of the bus while women sat at the back. In many buses, signs instructing women to use the back part of the bus were put up by the bus company. On some bus lines, bus drivers enforced the separation by requiring women to use only the back seats. Several instances were recorded of harassment of women who did not comply with these demands.Footnote 82
The Court in Ragen decided, in accordance with the conclusions of a special committee appointed by the Minister of Transportation, that any form of coerced separation, including state endorsement of voluntary separation, was prohibited and amounted to discrimination. Yet the Court also concluded that voluntary separation was permitted, and ordered a trial period in which voluntary separation could be facilitated by allowing passengers to enter the bus from both the front and back doors. This arrangement is meant to be temporary, until it can be established that, in practice, it does not lead to coerced separation.
The distinction between voluntary and non-voluntary separation and the notion of free choice were central to the Court's decision. The Court seems to share with the drafters of the 2006 Regulations the view that coerced separation should be prohibited, but did not examine the genuine ability of ultra-orthodox women to exercise free choice in these circumstances. The Ragen case concerned public buses that serve both the religious and non-religious population; the Court's decision rested, to a large extent, on the objection of non-ultra-orthodox women to the separation, and thus did not examine in depth the reasons for which ultra-orthodox women complied with the separation.Footnote 83 By focusing on the objections of non-ultra-orthodox women, the Court missed an important opportunity to examine the state's duties towards those individuals who belong to non-liberal communities in general and towards ultra-orthodox women in particular.
Despite the differences between the subject matter of the Ragen case and of this article, Ragen is important in that it reaffirms that separation between men and women, at least when coerced, amounts to a violation of equality. As indicated above, however, the question of separation in education differs from the question of separation in public transportation in at least two important aspects. The first is that, while public buses, even on those routes that pass through ultra-orthodox neighbourhoods, serve the entire public, ultra-orthodox educational institutions are specifically designed to serve exclusively the ultra-orthodox community. Secondly, while it is known that at least some ultra-orthodox women object to the separate seating arrangement, there is no indication of objection from within the ultra-orthodox community to separation in education. Thus, the question of coercion does not arise.Footnote 84
4.2.4 Equality in Content, Service and Facilities
The third requirement is equality in content, service and facilities. Here, there is room to distinguish between areas that fall within the institution's autonomy and areas that do not, as well as between state actions and actions taken by private actors.
As indicated above, ultra-orthodox girls' schools and ultra-orthodox boys' schools are often owned and operated by different networks. The question of the duty of private actors to provide equality in content, service and facilities is thus limited to those networks that own schools for both boys and girls.Footnote 85 In general, the educational programme differs between boys and girls. In boys' schools, the curriculum concentrates on religious studies; in some ultra-orthodox schools it includes secular studies prescribed by the Core Programme, while in others it consists exclusively of religious studies. The curriculum in girls' schools includes secular and religious subjects, although ultra-orthodox girls usually do not study the Talmud (the collection of rabbinical writings that constitute Jewish religious law). The permissibility of these differences depends, in general, on the extent to which they are necessary to maintain the nature of the education – namely, on whether they satisfy the Tebekah test. Even if the difference in content could be justified, however, no similar justification exists for disparities in services and facilities, or other allocation of resources. With regard to the allocation of resources, therefore, there is room to consider requiring ultra-orthodox networks that own schools for both boys and girls to allocate resources to these institutions equally.
The duty of the state to apply clear and equal criteria to the distribution of state resources has been reaffirmed specifically in the area of education.Footnote 86 This duty applies not only between sectors but also between the sexes. In general, thus, the state has a duty to fund institutions for boys and girls equally. However, as discussed above, the extent of state school funding in Israel is tied to the study of the Core Programme. Since the schools that do not teach the Core Programme are predominantly boys' schools, in practice, state funding of boys' ultra-orthodox schools is more limited.Footnote 87
Even if separation in education is permissible, and if the differences in content could be justified, the question still stands whether, and to what extent, the state should fund single-sex institutions that are based on principles incompatible with equality. If separation between men and women is an inherent feature of ultra-orthodox education, the alternatives the state faces when regulating it are either to (i) outlaw it, (ii) withdraw all support from it, or (iii) accept separation between men and women as an inherent feature of an educational alternative which the state has an interest in supporting. The current policy in Israel with regard to the funding of schools is one of conditional funding, whereby the degree of state funding depends on whether the Core Programme is taught. As indicated above, funding may be reduced for an institution that does not teach the Core Programme and, in some circumstances, when it engages in discriminatory admission practices. Since separation between boys and girls in ultra-orthodox schools is incompatible with the notion of equality, it should be considered as an additional factor in state funding. Even if this will not change the amount of state funding in practice, it will send across the message that such separation is incompatible with the educational goals and values prescribed by the state.
4.3 Religious State Schools
4.3.1 The Status of Religious State Schools
Religious state schools present a more challenging case than unofficial recognised schools, for a number of reasons. First, as noted above, they are part of the public education system and, strictly speaking, do not enjoy educational autonomy. While the special religious nature of the schools is recognised and they are supervised by a separate division within the Ministry of Education, they are funded by the state to the same extent as non-religious state schools and are subject not only to the legal requirement of equality, but also to the educational goals and values defined by the Ministry of Education, which include the promotion of equality between men and women. In September 2002, for example, the Ministry of Education published an executive memorandum which stresses the importance of gender equality both as an organisational principle and as a central value of the educational programme in schools.Footnote 88 The goals defined in the memorandum include ‘promoting equal opportunities and alleviating stereotyped views of both sexes in the education system and in the community’. The memorandum requires educational institutions to promote equal opportunities for boys and girls, including in the use of physical and spiritual resources.
The reference to institutions rather than to districts or school networks assumes, as a model, coeducational schools. Only some religious state schools, however, are fully coeducational and these are, for the most part, elementary schools. Other elementary schools maintain separate classes for boys and girls in all areas of study, while others are single-sex institutions. The vast majority of post-elementary institutions are single-sex.
Although the existence of separate institutions for girls and boys may raise considerable equality concerns, this section focuses on elementary state religious schools and, in particular, on elementary religious schools that are, or were in the past, coeducational and are either considering or implementing separation between boys and girls. Discussion of the process of separation of formerly mixed schools into boys' and girls' classes raises issues and questions that do not arise in connection with ultra-orthodox schools, which have always been completely separate, and provides an opportunity to examine these issues.
4.3.2 The Justification for Single-Sex Education in State Religious Schools
The purpose of separation between girls and boys in religious state schools is the subject of a vibrant internal debate within the communities that these schools serve, a debate that is little known outside of these communities. This debate demonstrates the difficulty of ruling on the permissibility of separation arrangements based on their purpose or justification. In general, two types of justification surface when examining exchanges between parents and educators regarding the topic of separation. The first is religious and includes both Halachaic arguments (which involve an interpretation of the laws of the Scriptures), which present separation as a religious obligation, and cultural–religious arguments, which view separation as part of a religious way of life reflecting religious values. These arguments were presented, for example, in a pamphlet published by the town Rabbi of Givat Shmuel with regard to a suggestion to cancel the separation in a school in the town, stating that separation is a religious obligation that is necessary in order to maintain the purity of the family and a religious lifestyle.Footnote 89
The second type of justification is pedagogical. Some proponents of separation in religious schools base their claims on the pedagogical advantages of single-sex education. For example, a different pamphlet, written by a group of parents and distributed to other parents regarding separation at the same school, stressed that separation is also desirable for pedagogical reasons since ‘many researches indicate that separation allows members of both sexes to reach their maximum potential’.Footnote 90 Among those who point to pedagogical advantages of separation, there are at least some who view separation as an opportunity not only to improve the achievements of both sexes, but specifically to promote girls and women in the religious society, although such claims have been made mostly with regard to separation in higher grades.Footnote 91
Since there is little external scrutiny of the processes of separation taking place in religious state schools, there is little discussion of the legitimacy of each of the two considerations and the ability to reconcile them with each other. Justifications of the first type are rooted within a presumed autonomy of religious state schools, yet the existence of such autonomy and its boundaries are far from clear. I discuss above the ‘absolutely necessary to preserve the uniqueness of the education’ test determined in the Tebekah case as the applicable test for evaluating the legality of practices incompatible with equality in unofficial recognised institutions. Since religious state schools, unlike unofficial recognised institutions, are part of the state school system, the relevance of this test is questionable, and cannot be determined without an overall review of the status of religious state schools within the public school system. In any case, it is also far from obvious that the practice of separating boys and girls in religious state schools passes the Tebekah test. While it could be argued that separating girls and boys is a fundamental characteristic of the ultra-orthodox education system, the history of coeducation in religious state schools indicates that, at least historically, separating boys and girls was not perceived to be an ‘absolutely necessary’ element of the type of education this system provided. The historical argument is not necessarily conclusive, and it is possible that the moderate orthodox community in Israel has undergone such change that separating boys and girls in all classes is now a fundamental feature of its way of life. While such a claim could be raised by proponents of separation, it has yet to be examined thoroughly.
Relying solely on pedagogical justifications is equally problematic. First, if there are good reasons, from a pedagogical perspective, to separate girls and boys, these reasons are applicable to all schools and not just to religious state schools.Footnote 92 If parents of children in religious state schools are given control over pedagogical policy in this respect, parents in other schools should be given the same power. Here, too, an overall examination of the issue of parental involvement appears to be warranted in order to ensure consistency and equality among parents.
In addition, even those researchers who conclude that separation may have pedagogical advantages agree that separation alone is not enough to achieve these advantages, and that specific attention should be paid to the educational needs of each sex. As the qualitative research indicates, separation was of benefit to girls most when it was part of an overall educational environment that supported the empowerment of girls and women. Similar observations have also been made in the scarce qualitative research conducted in religious schools in Israel.Footnote 93 Thus, it is doubtful that pedagogical considerations can justify separation where no additional measures are employed to support its positive outcomes.
Evaluating the legitimacy of the justification for separation is most complex when both religious and pedagogical justifications are cited, as is often the case in current controversies. In some cases, pedagogical arguments are only a disguise for religious ideology. In others, proponents of separation sincerely believe that both religious and pedagogical goals can be achieved through separation. Although the modesty considerations are, in themselves, based on an ideology that is incompatible with women's equality, religious educators often point out that allowing girls to study separately from boys may provide them with an opportunity to take an active part in public life – for example, by leading, in the school setting, religious rituals from which they would otherwise be excluded.Footnote 94 Further research is needed in order to examine whether this is indeed true, taking into consideration that religious justifications and pedagogical justifications for single-sex education are, in general, contradictory.
4.3.3 The Requirement of Voluntary Enrolment
Decisions to separate coeducational schools are made in various ways. Leah Shakdiel, who studied two post-elementary schools that went through a process of separation in the 1990s, noted that in both schools the decision to separate boys and girls was an internal administrative decision made by school staff, which was not even documented in writing.Footnote 95 However, in recent years, and perhaps following the 1999 memorandum,Footnote 96 the decision whether to separate boys and girls is often left to the parents’ discretion and decided by a majority vote of the parents whose children study at the school.Footnote 97 In a mixed elementary school in the city of Modi'in, for example, the parents voted in 2008 on whether to separate girls from boys. Out of 134 families, 82 families voted in favour of separation but were divided on whether it should begin from the first, second, third, fourth or fifth grade. Out of the 134 families, 52 objected to separation. Among the remaining families, 12 supported separation from starting in the fifth grade, 22 supported separation from the fourth grade, 14 supported separation from the third grade, 3 supported separation from the second grade and 20 supported separation from the first grade. In the second vote, the parents were required to choose between separation from the fourth and fifth grades: the decision was made to separate from the fifth grade onwards.Footnote 98 The 52 families who opposed separation altogether had the option of either accepting the new reality or removing their children from the school. In many cases, there is no coeducational religious alternative within the geographic proximity, which means that the only coeducational alternatives for such parents are non-religious state schools.
The first difficulty that this scenario raises concerns the meaning of individual choice in the context of education. Both the 2006 Regulations and the Ragen case view choice as a central component of permitted separation. Both, however, assume that such choice refers to individual choice. The Regulations are based on the presumption that both separate and coeducational alternatives are available and each student (or the parents) can individually choose between them. Similarly, in Ragen the Court stressed the importance of allowing each bus passenger to make a choice and ordered the bus companies to place signs clarifying this policy.
The Ragen case, however, demonstrates the difficulty of thinking about choice in individualistic terms in the context of separation, a difficulty that becomes even more apparent in the case of the Modi'in school described above. While each woman passenger may be able to choose her seat individually, she cannot choose, on her own, whether to sit apart from members of the other sex because that requires the co-operation of the other passengers. Separation requires a collective consciousness: taking two people, it is not possible for one to choose to sit together and the other to choose to sit separately. Similarly, a man's choice to sit ‘separately’ from women is meaningless if women continually choose to sit by him. The Court thus presents a flawed theory of choice by assuming that it is possible to make individual choices with regard to collective practices taking place in a single environment.
This difficulty becomes even more evident in the example of the choice to separate boys and girls in education. Parents of 52 Modi'in students not only did not choose separation but explicitly objected to it, many of the objections being based on deep ideological convictions and non-acceptance of the values on which separation is based. Even if, because of the lack of an alternative, these parents accepted the majority decision, it would be difficult to argue that such acceptance amounts to free choice in the sense that the Regulations and Ragen refer to. Deciding on separation by parental majority vote is equivalent to allowing bus passengers to decide on separation by majority vote. The implications within the context of education, however, are much harsher. While the passengers who voted against separation may have other alternatives – by taking the next bus, for example – the parents who objected to separation often do not.
The option of withdrawing their children from the school altogether exists. However, in light of the fact that the only coeducational alternative is a non-religious public school, parents and students are not provided with an ‘equivalent’ coeducational alternative, and are forced to choose between their objection to separation and their desire to provide their children with a religious education. By backing the majority decision, the Ministry of Education de facto requires them to make this choice, despite its declared commitment to gender equality in education.
In the current situation, the state, represented by the Ministry of Education, at best treats both alternatives as equal. If the general rule, however, is that coerced separation is prohibited, in those situations in which parents have disagreed over separation, parents who object to separation should be accommodated, if not given preference.
It is important to indicate that one of the reasons for the phenomenon of separation is the desire of the administrators and educators of religious state schools to keep students in the public system and prevent them from leaving it in favour of non-public religious schools, most of which (if not all) are unofficial recognised institutions with single-sex accommodation.Footnote 99 While this goal may be, on its own, legitimate, it cannot trump the principle of equality and the rights of parents and children who object to separation to equality, dignity and education in accordance with their beliefs.
Accommodating parents who oppose separation may take several forms, some of which may be more compatible than others with the goal of retaining students who are interested in separation in public schools. One solution is to defer to coeducation as the default wherever there are disagreements among parents. Another is to require the state to provide coeducational religious education to those parents who object to separation, for example, by requiring schools to offer coeducational classes along with separate ones. I am not able to examine and evaluate all possible solutions within the scope of this article. It is quite clear, however, that the current situation, which results in parents being forced into accepting separation, is incompatible with the principle that separation should always be the result of free choice.
4.3.4 Equality in Content, Services and Facilities
The third component that needs to be examined in evaluating separation between boys and girls in religious state schools is equality in content, services and facilities. In light of the difficulty in identifying the justification for separation, and the fact that under the Tebekah test purposes that are incompatible with equality may be still allowed, this third component is perhaps the most important. It is, thus, especially alarming that there is little regulation and supervision of the manner in which separation is executed in practice.
The distinction between the purpose of the separation and the manner in which it is executed illustrates an important point that is often overlooked: this is that even if religious reasons justify separation, they do not justify differences in the allocation of resources and do not automatically justify differences in the content of studies.
Funding for schools in Israel is generally allocated in accordance with the number of classes in a school, and schools enjoy relative autonomy in managing their resources.Footnote 100 While the Ministry of Education has issued guidelines that require schools to teach the mandatory curriculum to all students and to allocate additional resources towards the education of disadvantaged students, these guidelines do not address the issue of equal distribution of resources between boys and girls.Footnote 101 While the Gender Equality Memorandum does require educational institutions to provide equal access to physical and spiritual resources, the implementation of the memorandum in religious state schools is far from perfect.Footnote 102
Because of the relatively limited amount of supervision over the way in which schools use their resources, there is a danger that schools will use their resources in an unequal manner. For example, sporadic studies indicate that there are schools in which boys are allocated more teaching resources than girls because of their additional religious studies.Footnote 103 While further empirical research needs to be conducted in order to determine whether this is a widespread phenomenon, the fact that there are no clear guidelines or regulations regarding the distribution of resources between boys and girls raises the potential for abuse.
The question of the content of studies is even more complex. In general, the curriculum in boys' and girls' classes should be identical. Claims for exceptions from this rule may be both pedagogical and religious. Such considerations, however, may warrant only narrow exceptions from the general rule.
In many religious state schools the religious curriculum is different for boys and girls, with only boys studying the GemaraFootnote 104 and girls learning other religious subjects. This practice is rooted in the position that women should be prohibited, or at least discouraged, from studying the Talmud. Since the Gemara encompasses the most important and sophisticated religious texts, discouraging women from studying it prevents them from taking on any meaningful public role in religious society. This position has been criticised and contested in recent years by many in the modern-orthodox community,Footnote 105 and the Ministry of Education should expressly address it in its educational policy. On the other hand, in some schools, the emphasis on religious studies, especially for boys, has led to cutting back on hours devoted to secular studies. The differences in the content of study are potentially discriminatory both against girls, if examined from a religious perspective, and against boys, if examined from a secular perspective. Here, too, a unified policy and clear guidelines are warranted.
The issue of separation in state religious schools is an important issue which has yet to be addressed comprehensively. Despite growing media interest in the topic, the fact that separation may conflict with the legal principle of equality and with the declared educational policy of promoting equality between men and women has, to a large extent, been ignored. This can, in part, be attributed to the fact that separation has mostly been treated as an internal issue of the orthodox community. Those within the orthodox community who object to separation have themselves been careful not to rely primarily on justifications of equality. Such justifications are viewed as external and ‘foreign to the community’, and are problematic because, in theory, they apply also to separation in higher classes, which some of the parents who object to separation in elementary education support.Footnote 106 However, since religious state schools are part of the state education system, and taking into consideration the rationale of the policy of conditional funding applied to ultra-orthodox schools, there is room to examine the implications of this policy for state religious schools that engage in practices incompatible with equality.
5. Conclusions
While the Noar Kahalacha, Tebekah and Ragen decisions do not provide complete answers to the questions that arise with regard to the legality and legitimacy of separation between boys and girls in Jewish religious schools in Israel, a number of important principles can be derived from them. The first is that separation between men and women in public services is prima facie discriminatory. The second is that free exercise of a certain practice may mitigate, in some cases, its discriminatory nature. The third is that sectorial autonomy in the area of education may allow for certain compromises of the principle of equality. The fourth principle is that such autonomy is not absolute, and denominational educational institutions are subject to particular equality laws as well as to the general constitutional principle of equality.
While it is arguable that separation between males and females is within the educational autonomy of private ultra-orthodox institutions, this does not relieve the state from its obligation to ensure equality in the funding of such institutions. It also does not relieve the state from its obligations towards individual members of the community, for example, by ensuring that both boys and girls are equally provided with basic secular education required in order for them to be able to provide for themselves as adults.Footnote 107
Whether separating boys and girls is within the autonomy of religious state schools, especially in primary education, is a more complex question. Most religious state post-elementary schools are segregated; additionally, there is a growing trend towards separation of boys and girls in religious state elementary schools. This trend, however, is initiated, for the most part, from the bottom up, and the decision to separate a formerly mixed school is made on a per-school basis, often by a majority vote of the parents. As a result, fundamental questions such as (i) whether separating boys and girls is within the mandate of religious state schools, (ii) how can the rights of parents and students who object to separation be protected, and (iii) who should decide whether separation in a given school should take place, have yet to be addressed. In addition, with the exception of the 1999 memorandum, there are currently no guidelines to determine how separation should be executed and, accordingly, there is little supervision of the manner in which separation is executed.
In August 2011, a petition against the Ministry of Education was filed in the Court of Administrative Matters in Petach Tikva by a group of parents who objected to the Ministry of Education's decision to separate boys and girls in a city elementary school.Footnote 108 The petition, which was the first of its kind, was based, to a large extent, on the fact that the Ministry of Education's decision circumvented the parents' majority vote decision against separation. As discussed above, however, separation based on the majority vote of parents is equally problematic.
This latest petition is the first legal manifestation of an ongoing debate within the Israeli modern-orthodox community. In the absence of clear policies and guidelines, the petitioners turned to the Court in an attempt to resolve an issue that involves complex policy, value-based and pedagogical questions. Recognising that this is the case, the Ministry of Education has announced the establishment of a committee that will examine the issue of separation between boys and girls in religious state schools and establish clear policies and guidelines.Footnote 109 The principles outlined in this article may serve as a starting point in thinking about such policies and guidelines.
