1 Englard, I., “law and Religion in Israel” (1987) 35 Am. J. Comp. L. 185, at 187CrossRefGoogle Scholar. In our general discussion of state and religion in Israel throughout this introductory survey we will be relying heavily on the analysis of Prof. Englard in his excellent article.

2 Id., at 204.

3 Id., at 188.

4 Id., at 188-189.

5 Id., at 189.

6 Id., at 192-193. For further discussion of these issues, see also Goldstein, S., “Israel: A Secular or a Religious State?” forthcoming in (1992) 36 St. Louis U. L. J.Google Scholar

7 7 L.S.I. 113, as amended 34 L.S.I. 118.

8 There are two general restrictions on this choice which we will not discuss herein in depth. First, Israel is divided into local educational districts and the basic principle is that a child's right to learn in a State school is limited to State schools located in the district in which he lives. What then occurs when a parent wants his child to be registered in a State religious school and the only school in the district is a State (secular) school or visa versa? If there is the requisite number of pupils who want the school that is lacking, the district is required to open it. However, if there is not the requisite number, the legal situation is not absolutely clear. However, in our view, in such a situation the child must be allowed to learn in the desired type of school in an adjoining district, and this is, in fact, what occurs in practice. The second restriction relates not to the original registration of the pupil but as to later transfers. Whereas, the original registration is completely at the option of the parent, once a child has been registered in a school, he cannot be transferred to another school, except through a specific procedure that requires the approval of the local school authority. However, this is a general vagary of the Israeli scheme that distinguishes between transfer and registration, and does not detract significantly from the basic choice given to parents between State (secular) schools and State religious schools. See generally, Goldstein, S., “Judicial Intervention in Education Decision Making”, in Goldstein, S. (ed.) Law and Equality in Education (Jerusalem, 1980) 95, 103–107Google Scholar.

9 Regulations as to State Education (Transfers) 1959, Regulation 6(c).

10 In this regard we should also note another point which may be viewed as semantic, but does have significance. In this paper we have frequently referred to the State “(secular)” schools in order to distinguish them from die State religious schools, generally putting the word “secular” in parenthesis. While this may, indeed, be desirable for purposes of clarity, and thus we have and will continue to use it for this purpose — we should point out that the correct statutory term, and, indeed, the popular usage for these schools is merely “state schools”. The term secular is neither part of their name nor of their description, official or unofficial.

11 Recently there has been a public debate, conducted in the press, concerning the teaching of the traditional Jewish prayer book in the State schools as part of the teaching of Jewish tradition. Those opposed to this instruction view it as religious doctrine and, as such, impermissible in the State schools. See Ha'aretz, 5 Feb. 1992, p. B1Google Scholar; id., 6 Feb. 1992, p. B3; id., 18 Feb. 1992, p. B1. In contrast a leading secular Zionist author, Aharon Meged, supports such teaching as part of Jewish culture, see Ha'aretz, 10 Feb. 1992, p. B4Google Scholar.

12 In a unique attack on a noncurricular religious aspect of a State school, the parents of a girl refused to register her as required in the local State school and sought to have her be allowed to learn in a school in a nieghbouring kibbutz, see n. 8, supra, on the grounds that the local State school conducted voluntary morning prayers at the start of the school day. In the parents' action in the High Court of Justice on 28 Aug. 1991, a compromise was reached whereby the morning prayers would be held, for those who wished to participate in them, prior to the start of the school day, i.e., between 7:50 and 8:00, with the school day beginning at 8:00. (Manoah v. Local Council Rosh Ayin (unreported)).

13 As quoted in Goldsmit, Y., Of the Foundations of State Religious Education (Jerusalem, 1976, in Hebrew) 64–65Google Scholar.

14 The Hebrew term “Torah” is difficult to define, and its meaning very often depends on its context. Its literal meaning may be stated as “teaching” or “law”. In specific terms it refers to the Pentateuch, otherwise known as the Five Books of Moses, i.e., the first five books of the Bible which according to Orthodox Jewish belief were given to the Jewish people by God at Mt. Sinai. The Pentateuch is the basic source of scriptual law and thus more generally “Torah” refers to the totality of scriptual Law. In this regard we should also note that according to Orthodox Jewish belief, not only was the Pentateuch or written law given to the Jewish people directly by God at Mt. Sinai but so also was the “Oral Law”, which later found textual form in post-Biblical rabbinic writings, primarily the Talmud. Thus the term “Torah” may also refer to both the written and the Oral Law which are viewed as one totality forming the entire body of revealed Law. This last view is the apparent meaning of the term “Torah” in the above-quoted objectives of the teaching of Bible in the State religious system. See Y. Goldsmit, supra n. 13, at 67.

15 Y. Goldsmit, supra n. 13, at 65-66.

16 See supra n. 14; Y. Goldsmit, supra n. 13, at 67.

17 As quoted in Y. Goldsmit, supra n. 13, at 71.

18 Most of the issues that have arisen in this regard refer to teachers, as distinguished from the other professional employees mentioned in the text. For that reason and for the sake of brevity we will refer in the remainder of this chapter only to teachers. However, it should be emphasized that the matters stated herein are also applicable to the other professional employees.

19 These directives are reprinted in Y. Goldsmit, supra n. 13, at 45-46. An earlier, and very similar version, dated 1955, is printed in Stanner, R., Education Laws (Jerusalem, 1966, in Hebrew) 116–117Google Scholar.

20 Directive B(2); Y. Goldsmit, supra n. 13, at 46; R. Stanner, ibid., at 117.

21 Quoted in Y. Goldsmit, supra n. 13, at 49.

22 See S. Goldstein, supra n. 8, at 96-97; S. Goldstein, supra n. 6.

23 A few years ago. there was a public controversy over the requirement imposed by the Council that an applicant for appointment fill out a detailed questionnaire about religious observance of himself and his spouse, including questions as to their intimate family life. As a result of this controversy, this questionnaire is apparently no longer in use. However, this controversy focussed not on the substantive basis for not appointing teachers, but rather only on the implementation of these bases through the questionnaire.

24 Y. Goldsmit, supra n. 13, at 65-66.

25 In any case of outright dismissal of a teacher for no longer conforming to the directives as to his or his spouse's religious behaviour, the dismissal would not be based on any employee disciplinary violation but rather on the teacher's no longer being able to fulfill his role as religious educator. Compare Katz-Shmueli v. Minister of Education and Culture, (1955) 9 P.D. 1839, and the text accompanying n. 29, infra. As such the dismissed teacher would be entitled to severance pay. State of Israel v. Chinuchi, (1977) 9 P.D.A. 14. See also n. 28, infra.

26 The case is not reported but is discussed in R. Stanner, supra n. 19, at 117.

27 Dagani v. Minister of Education and Culture, (1955) 9 P.D. 815.

28 We should also mention an unreported 1956 District Court opinion involving a kindergarten teacher in the State religious system who converted to Catholicism and was for that reason dismissed. She did not challenge the dismissal itself, but brought a District Court action for severance pay in which she prevailed. See R. Stanner, supra n. 19, at 117-118. In our view this is a clear case in which the dismissal was legally justified. Indeed, as we will discuss shortly in the text, in such a case dismissal might even have been legally justifiable if the teacher were employed in the State (secular) system. As we have discussed, supra n. 25, the fact that the dismissed teacher was entitled to severance pay does not detract from the legality of the dismissal itself.

29 Supra n. 25.

30 Id., at 1848.

31 See the case discussed supra n. 28. Compare also the famous case of Brother Daniel, Rufeisen v. Minister of Interior, (1962) 16 P.D. 2428; S.J. (Special volume) 1.

32 Compulsory Education Law, 1949, 3 L.S.I. 125, sec. 5(a). Actually, in this regard the State Education Law draws an interesting semantic distinction between a child who attends an official State school or recognized school which attendance constitutes “fulfillment” of his parents' obligations under the compulsory school law and attendance at a non-recognized private school which appears on a published list drawn up by the Minister of Education and Culture pursuant to sec. 5(a) of the Law, which latter attendance merely “exempts” the parents from their obligations under the Compulsory Education Law.