The Right Not to Work

Income subsidies for yeshiva students loom as another source of conflagration between the secular and ultra-Orthodox sectors of the population.

By ZIV HELLMAN
July 20, 2010 16:08
REVERSE DISCRIMINATION: It was simply taken for granted that being a yeshiva student was sufficient

haredi students (do not publish again). (photo credit: FLASH 90)

By now its unmistakable.Conflicts between the secular and haredi (ultra-Orthodox) sectors of Israeli society are increasing exponentially, with both sides speaking apocalyptically about existential threats.

In mid-June, in one dramatic week, two Supreme Court decisions went against haredi interests. The first put an end to the preferential treatment that has granted welfare income guarantees to yeshiva students while denying them to university students. The second brought court-ordered arrests, for two weeks, of haredi parents who had defied the previous court rulings that ordered them to send their children to Ashkenazi-Sephardi integrated schools.

The arrests prompted some 100,000 haredim to take to the streets in protest in B’nei B’rak and Jerusalem. Yerach Tucker, spokesman for Knesset Member Moshe Gafni of the ultra- Orthodox Degel Hatorah party, says the situation appears grim. “We are being pushed into a corner,” Tucker tells The Report. “There is a lot of negative sentiment among the haredi sector right now. Supreme Court justices have explicitly said we need to choose one or the other – between following the courts or our rabbis.

With all due respect, the Torah existed long before the State was established, and it is clear that Torah law takes precedence over everything else.”

And Uri Regev, CEO of Hiddush, an organization advocating freedom of religion and equality, and an ordained Reform rabbi, declares to The Report, “The time has come – and it is long overdue – for a genuine battle over the soul of Israel. Mighty forces are challenging the legitimacy of Israel as a Jewish and democratic state.”

The issues over which these clashes have erupted have wide-ranging ideological, sociological and economic implications for Israeli society. Yet no one seems to have any clear view yet of a possible long-term resolution.

ALTHOUGH CONFRONTATIONS between the minority ultra-Orthodox sector and the general Jewish population are far from new, well pre-dating the creation of the state, the past year has seen a ratcheting up of sometimes violent haredi demonstrations, accompanied by warnings by both officials and observers that a situation in which growing numbers of haredi men choose not to work for a living is socially and economically unsustainable.



Last summer and autumn, many Israelis were surprised at the vehemence expressed in a series of demonstrations by haredim variously protesting the opening of a Jerusalem car park on Shabbat, the interference of social workers in haredi families accused of child abuse and permission granted by the state for Intel to operate factories on Shabbat. Recent government zigzagging over the question of the construction of a hospital emergency ward in Ashkelon, which was opposed by haredim on the grounds that ancient graves found at the site might have contained the bones of Jews, again focused attention on the extent of ultra-Orthodox political influence (even though overwhelming public pressure eventually forced the government to approve construction on the site).

At the same time, numerous observers, such as Prof. Dan Ben-David, director of the Taub Center, warn that the current situation, in which haredi men, whose relative numbers in the population have been steadily increasing, choose not to work for a living, is unsustainable. The ultra-Orthodox population now constitutes a bit less than 10 percent of the population of Israel, and about 65 percent of haredi men aged 35 to 54 do not work for a living, compared to 20 percent who were full-time students 30 years ago.

Those warnings are beginning to make an impression on high-level decision makers.

At the Caesarea Economic Policy Planning Forum, organized by the Israel Democracy Institute and held in Nazareth on June 16, Finance Minister Yuval Steinitz explicitly echoed the Taub Center’s findings in a major policy speech. “Without a change now, within 10 years the situation will be a catastrophe,” said Steinitz, referring to the low incorporation of the ultra-Orthodox in the workforce. Acountry with a large percentage of able-bodied adults who choose not to join the workforce suffers from dramatically reduced GDP directly from loss of production, while at the same time the burden on the public purse to support them and their families further weakens the economy.

Steinitz said it was important to recruit haredi men and women into the labor market when they turn 22, rather than waiting until they are 35 or 40, as is the case today, when they frequently find it difficult to obtain an openinglevel job that will provide a decent salary.

Steinitz announced that he plans to submit an amendment to the current law forbidding ultra- Orthodox men who have not served in the military from working. The proposed amendment would exempt haredim who are aged 22 with at least two children from army service, which would then allow them to work. Ultra- Orthodox men are currently exempt from army service only if they are aged 31 or have at least five children.

“If haredim don’t serve in the army in greater numbers, it won’t have an impact on Israel’s capability to protect itself,” Steinitz said.

“But if haredim don’t significantly boost their participation in the labor force, we will face a critical problem in the future. The integration of the haredi public is essential for the continued development of the economy.”

Of the two mid-June Supreme Court decisions, the one leading to the incarceration of 35 haredi men from the settlement of Emmanuel naturally garnered greater headlines and expressions of anger on the ultra-Orthodox street. The court’s actions followed months during which the families in Emmanuel defied court orders that they send their daughters to integrated schools, after the court found evidence that students enrolled at the ultra-Orthodox Independent Education Center-run girls’ school – a private entity that also receives state funding – had been learning in a segregated environment.

The institution had been physically divided – with separate entrances, separate teachers‚ separate rooms, and even separate playgrounds for the two groups of girls.

When the physical divisions in the school came down under court orders, the families of the Ashkenazi girls – most of them belonging to the Slonim hasidic court – removed their daughters from the school and arranged for them to receive private unlicensed schooling instead. The court found this, along with statements by the defendants that they regard rabbinic authority to supersede that of the Supreme Court, to constitute contempt of court, leading to the arrest orders. In their defense, the Slonim parents insist that the school separation was motivated not by racism but by a desire to ensure their daughters received more stringent religious instruction, and as proof cited the fact that a number of Sephardi girls were accepted to the hasidic track at school and that three Sephardi fathers were among those incarcerated for contempt of court.

THE SUPREME COURT RULING on welfare income guarantees, however, deserves just as much scrutiny. It is a precedent-setting decision that may for years affect how criteria for state benefits are determined, governmental transparency, the weight given to the principle of equality in Israeli law and even the constitutional standing of future laws.

It took 10 years from the filing of the appeal against unequal welfare income guarantee payments to the Supreme Court’s final ruling, during which time the original petitioner, Ornan Yekutieli, a rights campaigner and a former deputy mayor of Jerusalem, passed away.

“The fact that it took 10 years to arrive at the court decision shows that claims that the court is overly active and anti-religious are wrong,” says Regev. “On sensitive issues, the court takes its time and does not rush to judgment. It bends over backwards to avoid ruling on these issues and is evenhanded.” But Regev regards the result as highly significant. “The court’s decision is a cause for major celebration and applause, because it strengthens the principle of equality in Israeli constitutional law. It constitutes important progress,” he says. “It has clearly said that if the only reason the state does something is because a political deal has been struck, that is not good enough.”

The roots of the issue go back to 1980, when the Knesset passed a law granting individuals whose incomes fell below “the minimum needed” for survival welfare payments called “income assurances.” To guard against potential “welfare cheats,” applicants for income assurances were required to prove that they met a list of stringent criteria. The criteria included a clause making any individual enrolled in studies at a regular educational institution ineligible to receive these payments: The framers of the law were concerned that students from middle or high income families would use income assurance payments as a temporary convenient source of income while studying full-time, perverting the original intention of helping only the neediest in society.

The problem is that by denying the poorest welfare recipients the opportunity to obtain higher education, the state was denying many of them a lever to lift themselves out of poverty.

On the one hand, enrolling in an educational program would mean an intolerable end to income support, but on the other, not getting an education means little prospects of getting a decent job. Jenny Baruchi, a single mother reliant on income assurance payments who was frustrated with this non-choice, joined Yekutieli in filing a petition to the Supreme Court. The basis of the petition was a claim of inequality: Although the state was strictly enforcing ineligibility for income assurance as soon as a beneficiary enrolled in a secular institution of learning, full-time yeshiva students encountered no impediment in enjoying full income assurance payments.

Even more flagrantly, according to the petitioners, yeshiva students were not even required to meet any criteria – it was simply taken for granted that being a yeshiva student was sufficient for eligibility for income assurance, as part of a web of myriad channels of state support enabling yeshiva students to study full-time without working, which haredi politicians had constructed in coalition negotiations with successive governments.

“It is a catch-as-catch-can attitude,” says Regev, “whatever political deal can be swung to obtain more funding.”

According to Barak Medina, professor of law at Hebrew University, who has analyzed the Supreme Court’s deliberations regarding the petition over the years, “the main question that the court was asked was what is the intent of the welfare income assurance payments. If the intent is to assist society’s neediest – why distinguish between yeshiva students and other students?” The state, Medina tells The Report, did not try to hide the fact that it had favored yeshiva students over others and even tried to turn that into a virtue. “The state claimed in court that it specifically intended to encourage yeshiva studies by permitting yeshiva students to receive income assurance payments,” he says. “It equated the welfare payments received by yeshiva students to stipends and scholarships that some university students receive as encouragement for their studies. But this is not a simple claim to make.”

The court has over the years increasingly insisted that proper governance requires that public monies not be spent indiscriminately.

Every budget item must be allocated for a specific purpose, and the state needs to justify every payment it makes under that allocation as meeting that purpose. In this case, if the intention of income assurance was to assist the poorest and neediest, why should being a yeshiva student be the basis for discrimination? If the government intended to support yeshiva students, as it claimed, in a manner parallel to scholarships given to university students, why did it not openly set aside funds in the budget to be allocated as such? The fact that for many years yeshiva students received income assurance without being required to meet any criteria was further interpreted by the court as indicating this was a benefit given to a particular population regardless of economic conditions, contradicting the original intent of the law. When the court frequently delayed decision on the petition in order to give the Knesset opportunities to rectify the situation, attempts were made to amend the law to make it appear more equitable.

The general criteria were made a bit less strict, with single-parents raising children granted the right to maintain eligibility for income assurance while enrolled in educational institutions.

At the same time, criteria for yeshiva students were stiffened: They were required to be married, have at least three children, and be fulltime students.

This, however, did not impress the court. “It actually had the effect of further weakening the state’s claims,” says Medina, “by making the discrimination between yeshiva students and other students even more blatant and official.”

WHEN THE COURT, IN ASEVENjudge panel, finally handed down its decision, a resounding majority of six to one struck down the discrimination between yeshiva students and other students.

The Knesset now has the option either of ending the eligibility of yeshiva students to receive income guarantees or extending that eligibility to all students. Currently, slightly less than 11,000 yeshiva students receive an average of 1,040 shekels ($270) in income assurance payments every month. It is unclear how many higher education students would be eligible for income assurance, or how many would apply for such payments, if the law were amended to equal eligibility criteria for all.

What raised some legal eyebrows was the legal reasoning on which the court relied. Israel has no written constitution. However, a distinction has been made between regular laws and what are termed Basic Laws, which are regarded as foundational. The Supreme Court, in a move that some still regard as controversial, has used that distinction as grounds for invalidating regular laws that contradict the Basic Laws, similar to the way the Supreme Court of the United States strikes down laws passed by Congress if they are considered unconstitutional.

The Israeli Supreme Court, moreover, has chosen to interpret the provisions of some of the Basic Laws, such as the Basic Law on Human Dignity and Liberty, as expressing broad principles of equality under the law.

But in its ruling on the matter of income assurances for yeshiva students, the court for the first time struck down a law without basing the invalidation on a Basic Law, but instead on the 1985 Budget Basis Law.

“The 1985 Budget Basis Law is not a Basic Law,” explains Medina. “But the Supreme Court did rule in 1999 that it is has greater standing than a regular law, and that its provisions can be used to strike down contradictory provisions in the annual budget. The court could alternatively have struck down the [income assurance] provisions by basing itself on the Basic Law on Human Dignity and Liberty, which it has interpreted as broadly prohibiting discrimination, but it chose to base itself on the narrower Budget Basis Law.”

This precedent has the potential of introducing finer-based distinctions between grades of law, beyond the distinction between Basic Laws and regular laws, which would give the Supreme Court even more power to invalidate laws that contradict other laws of higher standing.

But since the court is leading the way in establishing these distinctions, it is likely to face criticism that it is arrogating to itself powers not given to it by the Knesset.

Why, then, does the Knesset not take the initiative itself of determining a hierarchy of legislation that would clearly establish which laws take precedence over others in cases of contradiction and inconsistency? “That has been discussed for decades, in the form of a Basic Law on Legislation,” says Medina. “But the Knesset has not passed it, because it fears giving the Supreme Court formal legitimacy for invalidating legislation.”

THE ULTRA-ORTHODOX POLITIcal parties are already talking about passing new legislation to maintain the eligibility of yeshiva students for income assurance payments.

“The Supreme Court’s decision harms people who are among the poorest in Israeli society,” says Tucker. “They have large families and they live on very little. We are not talking about large sums of money – income assurance payments average 1,000 shekels (about $265) a month, and only about 10,000 yeshiva students receive them. But they rely on even this small monthly amount to survive.” According to Tucker, the new legislation that is being planned will establish objective criteria, such as family size, for receiving income assurance payments while being enrolled in an educational institution that will not specifically discriminate between yeshiva students and students in colleges and universities, in a way that he hopes will pass the scrutiny of the Supreme Court. But even he admits that he is unsure how the court will react.

“If the Knesset wants to restore the situation to what it was prior to the Supreme Court ruling, it could try to make an explicit amendment to the income guarantee law granting yeshiva students payments that are denied to college students. If it does that, an appeal could be made to the Supreme Court to invalidate such a clause based on the Basic Law on Human Dignity and Liberty, which the court has interpreted as forbidding outright discrimination,” says Medina.

Alternatively, the Knesset could try to “tailor” a seemingly non-discriminatory law that would in practice only apply to yeshiva students, by making eligibility for income guarantees for students depend on criteria that are met almost exclusively by the haredi population.

The Supreme Court could invalidate such a blatant attempt to tailor a law to fit the specifications of a particular population. It has in the past invalidated only executive orders that were overly tailored, but there is no reason to believe it would not extend the same reasoning to a law trying to achieve the same purpose.”

From a broader perspective, the issue of giving yeshiva students who actively choose not to work welfare income assurances directly relates to the question of how many non-working ultra- Orthodox men the state can indefinitely support.

“The income guarantees constitute 20 percent of the income of many haredi men,” says Regev. “It is clearly a counter-incentive to going to work.”

Tucker insists that the haredi workforce participation is higher than what the media generally report, and lays part of the blame for difficulties haredim encounter in finding jobs with secular society, since it requires a college degree for many private and public sector positions, but does not recognize yeshiva studies as equal in educational preparation for many jobs.

“Of course, there are jobs that require very specialized training,” says Tucker. “But there are many cases in which people who have a degree in, say, Chinese poetry get accepted to jobs having nothing to do with what they studied, just because they have a degree. A yeshiva student can have many years of very demanding and rigorous training in Talmudic studies, but will not be accepted to that same job because he did not get college credit for those studies. There is only one Jewish state. It should grant Jewish studies in yeshivas at least as much respect as it does to college degrees in many subjects. We need to state that openly. We can discuss many issues, but we must hear a commitment for the support of Torah education.”

Regev agrees with the general idea that Israel should support a certain degree of yeshiva studies. “I want to be clear: I do not come from the direction of someone who wants to uproot religion,” he says. “We are not calling for no Torah study. It is of tremendous importance, and should be supported, but in the proper context. It should be based on intellectual capacity and reasonable quotas. The public cannot be asked to pay for an open-ended commitment to support any and all yeshiva students with no limitations. There is no precedent in Jewish history for that. Even in the golden age of the yeshivas in pre-Holocaust eastern Europe, the total number of yeshiva students was between 5,000 to 20,000, at most.”

He calls for approaching the support for yeshiva studies in Israel in a manner similar to state support for the humanities, in terms of budgets and scope. “The number of yeshiva students, as a percentage of the haredi population, which is about 10 percent of the general population, should be comparable to the percentage of university students in the general population, in numbers and ages,” he proposes. “Only the very best Torah scholars should receive scholarships for advanced studies over many years of their lives, similar to graduate student scholarships and professorial fellowships. The relevant comparison for spending per yeshiva student can then be spending per student in the humanities.”

In the current atmosphere, however, it is difficult to see reasonable and agreed compromises on these issues being arrived at in the near future. “Right now, there is a lot of bad sentiment towards the Supreme Court,” admits Tucker. “There is no haredi representation on the court. It has never ruled in favor of the haredi public, always against it. And now it asks us to choose between following it or our rabbinical leaders. We have no desire to harm democracy. But Torah is more important than the state.”

“This should be a wake-up call,” retorts Regev. “The haredim, as is clear by their explicit pronouncements, regard the state courts as gentile courts. Central pillars of government coalitions, including Shas, reject the legitimacy of the civil judiciary of the state. They challenge the legitimacy of Israel as a Jewish and democratic state. For them, democracy is at best a utilitarian system for obtaining funds. Cutting political deals with them is undercutting Zionism and the democratic state. It is time to establish a civil government without haredi coalition partners. In the end, greater freedom will enhance Judaism rather than curtail it.”According to Tucker, the new legislation that is being planned will establish objective criteria, such as family size, for receiving income assurance payments while being enrolled in an educational institution that will not specifically discriminate between yeshiva students and students in colleges and universities, in a way that he hopes will pass the scrutiny of the Supreme Court. But even he admits that he is unsure how the court will react.

“If the Knesset wants to restore the situation to what it was prior to the Supreme Court ruling, it could try to make an explicit amendment to the income guarantee law granting yeshiva students payments that are denied to college students. If it does that, an appeal could be made to the Supreme Court to invalidate such a clause based on the Basic Law on Human Dignity and Liberty, which the court has interpreted as forbidding outright discrimination,” says Medina.

Alternatively, the Knesset could try to “tailor” a seemingly non-discriminatory law that would in practice only apply to yeshiva students, by making eligibility for income guarantees for students depend on criteria that are met almost exclusively by the haredi population.

The Supreme Court could invalidate such a blatant attempt to tailor a law to fit the specifications of a particular population. It has in the past invalidated only executive orders that were overly tailored, but there is no reason to believe it would not extend the same reasoning to a law trying to achieve the same purpose.”

From a broader perspective, the issue of giving yeshiva students who actively choose not to work welfare income assurances directly relates to the question of how many non-working ultra- Orthodox men the state can indefinitely support.

“The income guarantees constitute 20 percent of the income of many haredi men,” says Regev. “It is clearly a counter-incentive to going to work.”

Tucker insists that the haredi workforce participation is higher than what the media generally report, and lays part of the blame for difficulties haredim encounter in finding jobs with secular society, since it requires a college degree for many private and public sector positions, but does not recognize yeshiva studies as equal in educational preparation for many jobs.

“Of course, there are jobs that require very specialized training,” says Tucker. “But there are many cases in which people who have a degree in, say, Chinese poetry get accepted to jobs having nothing to do with what they studied, just because they have a degree. A yeshiva student can have many years of very demanding and rigorous training in Talmudic studies, but will not be accepted to that same job because he did not get college credit for those studies. There is only one Jewish state. It should grant Jewish studies in yeshivas at least as much respect as it does to college degrees in many subjects. We need to state that openly. We can discuss many issues, but we must hear a commitment for the support of Torah education.”

Regev agrees with the general idea that Israel should support a certain degree of yeshiva studies. “I want to be clear: I do not come from the direction of someone who wants to uproot religion,” he says. “We are not calling for no Torah study. It is of tremendous importance, and should be supported, but in the proper context. It should be based on intellectual capacity and reasonable quotas. The public cannot be asked to pay for an open-ended commitment to support any and all yeshiva students with no limitations. There is no precedent in Jewish history for that. Even in the golden age of the yeshivas in pre-Holocaust eastern Europe, the total number of yeshiva students was between 5,000 to 20,000, at most.”

He calls for approaching the support for yeshiva studies in Israel in a manner similar to state support for the humanities, in terms of budgets and scope. “The number of yeshiva students, as a percentage of the haredi population, which is about 10 percent of the general population, should be comparable to the percentage of university students in the general population, in numbers and ages,” he proposes. “Only the very best Torah scholars should receive scholarships for advanced studies over many years of their lives, similar to graduate student scholarships and professorial fellowships. The relevant comparison for spending per yeshiva student can then be spending per student in the humanities.”

In the current atmosphere, however, it is difficult to see reasonable and agreed compromises on these issues being arrived at in the near future. “Right now, there is a lot of bad sentiment towards the Supreme Court,” admits Tucker. “There is no haredi representation on the court. It has never ruled in favor of the haredi public, always against it. And now it asks us to choose between following it or our rabbinical leaders. We have no desire to harm democracy. But Torah is more important than the state.”

“This should be a wake-up call,” retorts Regev. “The haredim, as is clear by their explicit pronouncements, regard the state courts as gentile courts. Central pillars of government coalitions, including Shas, reject the legitimacy of the civil judiciary of the state. They challenge the legitimacy of Israel as a Jewish and democratic state. For them, democracy is at best a utilitarian system for obtaining funds. Cutting political deals with them is undercutting Zionism and the democratic state. It is time to establish a civil government without haredi coalition partners. In the end, greater freedom will enhance Judaism rather than curtail it.”


Related Content