THE JOURNAL OF HAlACHA

"

Synagogue Membership and School

Admission
Rabbi Herschel Schachter

The Midrash on the verse "and there was famine in the

land,"1 comments that in Scripture ten famines are described. Nine
of these famines have already transpired; one more is prophesied
for the era preceding the coming of Messiah. as described by the
prophet Am05: 1

," ',:1, nx y1t:llth ex

':1 ...

D'n? Kny 1'<71 on??

::Ill'

1'<7

Not a hunger for food ... nor a thirst for water but a
strong yearning to hear the word of G-d.
The Gemara comments:

"To hear the word of Cd" - this is halacha; "the

word of G-d", this is prophecy.)
Equating halacha (law) with prophecy captures the frustration
which will characterize the period before the advent of Messiah.

I . . 1< ,1":) l'l'lV'K'J.

2. K"' .n Ol~l'.
.l. n"p MJIII.

Rosh Hakolel, Yeshiva University

SYNAGOGUE MEMBERSHIP

We will be faced with questions in halacha which are so vexing

and complex that they appear insoluble except by prophecy. Such
are the intricacies of modern halachic problems that there seem to
be few traditional sources to aid us in coming to a methodical,
proper conclusion.
The halachic questions raised in today's society concerning
synagogue and school membership fall into this category of the
difficult and perplexing. We will explore the sources which are
available in investigating these topics.

Shul Membership
As an association for the purpose of serving the religious
needs of the community, the membership of a shul should consist
only of Jews. It goes without saying that non-Jews cannot under
any circumstances be accepted as full-fledged members of a shu!.
On the other hand, there are often occasions when a Gentile
may want to become a member simply as a sign of respect for the
Jewish community or as an expression of support for the religious
center of his Jewish friends. He neither expects nor desires any
voice in determining the affairs of the shul; his is a non-voting
membership. Can there be any halacha forbidding such a step?
On the surface it would seem innocuous to allow a non-Jew
(nochri) or a Jew who converts out of the faith (mumar) to be a
non-voting member in a shu!. However, there are limitations
prescribed by the halacha. The problem reduces to the question of
whether we may accept a donation to the shul from a Gentile or a
mumar. Generally, we are guided by the principle o'?:JylJ"
"0"':1)1" p'J nl:J'Jl D"'J "We accept contributions from a l1ochri."
In the Beth Mikdash, sacrifices were accepted from Gentiles and
offered on their behalf. However with respect to the buildi"K of
the Beth Mikdash Ihe verse in Ezra 4 stales U?, o:J? /,b ..
"U'P'?I< n':J nl< nu::h [When the "ochrim offered to help build
the Temple, they were told] "It is not for both you and us 10 build
the house for our L-ord."

THE JOURNAL OF HALACHA

52

Based on this verse the Talmud concludes that we do not

accept a contribution towards the building of the Beth Mikdash
from a nochri.~ Many of the halachic regulations concerning
synagogues are patterned after the rules governing the Beth
Mikdash. 6 Kaf HaChaim quotes poskim who feel that the
prohibition of accepting money from a Gentile for building the
Temple is also applicable to a shu!. This, therefore, precludes our
accepting money from a naenr; for the purpose of building a shu!.
But if the money is designated for use in another religious project,
such as erecting an eruv or a mikvah, we may accept his donation.
This ruling is novel when viewed alongside the teaching of
Ramo~, which states that if a mumar (apostate) offers to contribute
to a shu\, we must turn him down. Why don't we take from him if
we are ready to take from the noelHi? The Mishnah Berurah 9
explains that this case, in fact, exactly parallels the law of the Beth
Mikdash. Based on the precise language of Scripture, the Gemara
derives the halacha: ,nmi1 nK K'Ylil7 lJ:J71:J K71 tl:Jn. (The verse
saysJ "From some amongst you" and not "from all of you" to
exclude a Jew who denies his faith. 1Q
Here we are taught not 10 accept donations from a mumar. By
our principle of applying the laws governing the Beth Mikdash to
the shu!. Kaf HaChaim explains, we accept money from a Gentile
except for building purposes. Conversely, we turn down all
donations to a shul from an apostate Jew. 1l
Now we must determine whether upkeep of the synagogue

5..,

.,rf

rJ'Y

6. See lengthy

~say

in ,"own ',wn n"t:lil "1" on l"J1'IJ nw"p.

7. '"!l P'o ,.lP n",I" D"nn

8. 1".., '0 '"lp '0 n",1".

'po

9. The onnJ mwt:l and others base this ruling on the "'i111 'pOll.
10. '1'1 1''',n based on the verse - "" p'p J',p' 'J CJt:I C'I",
11. It should also follow that donations from Jews who are heretics or 50 non
observant that the halacha consideu them equivalent to Gentiles (D'JYJ Ol'1),
should also not be accepted for a school. See, however, responsa of R. Ovadia
Yoseph in 'lllltl pMY' J,;'
,"pnro ,n!l" p'Jlil '!l0.

l"'"

SYNAGOGUE MEMBERSHIP

falls into the category of donations unacceptable from a Gentile,

namely, those used for building purposes. Allowing a nochri to
become a member in a shul would hinge on this clarification, since
membership dues can be assumed to be equivalent to the dues
collected in the days of the Temple for its upkeep.
The Talmud qualifies the prohibition of accepting money from
a nochri for construction of the Temple with the following
statement:
rpO:l lK:l ,,7'nn:l lK:I

"In the beginning [we may not accept donations] but

at the end [we mayl."I~
Two explanations of the terms i17'nn:l (at the beginning) and
t]10:l (at the end) are offered by Rashi:
1) il7mn:l - when we build.
2) t)1O:I - once the building is completed.
According to this interpretation, it would appear that only for
the initial building campaign is it forbidden to accept donations
from nochrim.
However, Rashi's other interpretation is as follows:
1) ,,7'nn:l - when the Jews were independent they followed
the halacha and did not accept donations from ,lOch rim.
2) t)lO:l - in later years, when the Jewish community was
dominated by the non-Jewish government, and under extreme
pressure 10 accept donations from nochrim, they had no choice on
the matter.
In later years, the Temple was not being build but being
maintained. Clearly, according to this view in Rashi, upkeep and
maintenance of the shul are the same as as a building campaign;
once the building is [Link], only a contribution without a
specific purpose (KJ'J7lJ:I il:l') ono) would be acceptable.
Although it is not spelled out by the poskim, this author
assumes that the second view of Rashi precludes allowing a nochri

12. .1

1':"'),'.

THE JOURNAL OF HALACHA

to become a member in a shu!. Membership in a shu I implies not

merely a subscription to the shul bulletin and the dinner news, but
implies that one has joined the ranks of "the supporters of the
shul", responsible for its upkeep and its maintenance, A lone
donation may be accepted, but a Ilochri may not be counted among
those who have undertaken responsibility for the constant upkeep
of the synagogue. 1l
Membership With Voting Privilege
A new dimension is dearly added when deciding who may be
given voting rights in a shu!. Ideally we should only entrust this
important power to learned, righteous people. At the very least,
rules must be enacted to exclude obviously aberrant members of
the Jewish community from wielding power in a shu!. Thus, a man
married to a non-Jewess, a Cohen married to a proselyte or to
another woman forbidden to him. a person whose transgressions
warrant his being distanced from the community ('nJ7 'un) such as one who publicly insults the Rabbi or who refuses to
circumcise his children - has a distorted sense of what is necessary
in the Jewish community. We must bar such an individual from
affecting the outcome of choices which have weighty religious
significance. 14
Lifnei Iver
One of the situations which may prove problematic for a synagogue is a social function open to nominal members of the Jewish

13. A dear in~tance occUrS if a Gentile requests that a prayer for his health be s~id
for him in ~ shu!. According 10 the VNSl' omn /<0, we are nOI permilted 10 give a
blessing to a '1ochri. (.,-, ?"O J"o,., '"l' 1"1:l). However if he is willing to pay for
this blessing, ~ may bless him. But may WE' acnpl the donation from him?
Werl" Wl" !'E'rmilled to accept a donation, we would be .. lIowed to bless him.
B..sed on our interpretation. wt may accept from him and bll"SS him when he
makes a one-time contribution. But we may not accept rl"muneration from him
in thl" form of a lifetime membership to the ~hul.
14. The following i~ told over by Rav Soloveitchek about his ancestor Rabbi
Yoseph Dov Be. of Bri~k. During the last century. the Ru~sian government was
inter('!;ted in dosing the
(schools). The rabbis dtcided to send a

0"'"

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community. Does the sponsoring synagogue need to be concerned

that some of the guests may be mamzerim or perhaps not even
Jewish? One of the commandments in the Torah is "Thou shalt
not put a stumbling block before a blind man,"lS which includes
not causing a person who is "blind" - i.e., unaware of the true
facts - to be misled. It is quite possible that a single person
attending a function under synagogue auspices will automatically
assume that he/she can be assured of the "eligibility" of all
participants in the function. Is the shul administration liable for
indirectly initiating a forbidden relationship and causing the Jewish
partner to sin?
In gauging the validity of this objection, we have to ascertain
the scope of the admonition not to cause the blind person to
stumble. If the group as a whole will benefit from our action, but a
few individuals might be misled, does the prohibition apply?
A similar quandary attaches to the mitzvah of rebuking 16 a
fellow Jew when we see him engaging in sin. Here the Gemara
qualifies the mitzvah by noting, "keshem shemitzvah lomar.,,"

representative 10 St. Petersburg to be on hand to watch out for the religious

Jewish needs at all times. The hope was that, in this manner, they would be able
to ward off an impending edict forcing them to close the schools before the edict
would ever be enacted. One of the congregants in the Brisker's community, who
had always been lauded by the Rabbi of Brisk, was suggested for the position,
but Reb Yoshe Ber was the first to obje.::t to the appointm"nt. When asked to
explain his position, h" cited a text in "0)'0;'". There th" Gemara deals with the
ins tan! of a man who wraps a golden cup for a woman to watch in such a way
that she thinks it is silver. If the cup is stolen, she is liable only for the value of
a silver cup. By way of "d,ush" the Rav of Brisk explained that a person puis
extra care into watching over something which he thinks is more valuable. The
woman would watch over a golden cup more carefully than over a silver one.
Hence, if she were negligent in her care of the cup, she would only be obligated
to pay the value of a silver cup.
Reb Yosh" Ber's assl'Ssment of the man in question was thai he lacked an
appre.::iation of the paramount important" of education of the young. The
position should be entruued to someone who valued the schools, above all else,
as the most important aspect of Jewish life, regardll'Ss of his oth"r qualifications.
Th" same logic .pplies to voting in a shu!.
15. ,", 0"' ,ont"'.
16. I"' 0" Inp".

55

THE JOURNAL OF HAlACHA

"Just as it is a mitzvah to say that which will be listened to, so too

is it a mitzvah not to say things that will not be listened to."11 Use
of the word "keshem" implies equivalence - it is the same mitzvah
to remain silent in futile situation as it is to speak up when it
might do some good. Moreover, the Gemara rules that if a person
engages in an activity which is forbidden but is not aware that he
should not be doing it, we must still be cautious about "rebuking"
him on the matter. If we are certain that he will not change even if
we make him aware of his transgression, it is better to remain
silent. "Better that they [the sinners) should violate the law
unknowingly than that they should do it deliberately. "1& If a
person unknowingly sins he is not considered wicked. However, if
after being rebuked he nevertheless continues, he then becomes a
rasha, a wicked person.
Nevertheless, it seems from the Gemara that even if the
rebuke will fail to stop the sinful actions, there is still an obligation
of "rebuking," for the sake of protest so that it will not have a bad
effect on those watching. Obviously, there are situations where the
two aspects of "rebuking" will be in conflict.
This is the dilemma of the rabbi, who must stand before his
congregation and "rebuke" them about their oversights or make
them aware that some customary activity is forbidden, since he
cannot know that there will be 100 per cent compliance. Should
the rabbi not to try to uplift the congregation because some
individuals hearing his sermon might nevertheless continue their
misdeeds, and now be classified as deliberate rather than
inadvertent sinners? Certainly not. The limits of the mitzvah of
"rebuke", as clarified in the talmudic discussion, apply only to the
individual. net to the group. If the rebuker can bring benefit to the
group, he must do so, even if some individuals do not go along
and will now be caused to sin intentionally.
Similarly, the prohibition of "placing a stumbling block"
applies to the individual. not to the group; if the group will benefit

17. ::1"0 1111:1:1'.

18. :nl:l? n:llV.

SYNAGOGUE MEMBERSHIP

57

by having an opportunity to socialize with one another, we cannot

deprive them of this opportunity because one or two may
inadvertently stumble. 19

Admission to Yeshiva
Were we able to fashion our own utopia, our schools would
be filled exclusively with fine children from observant homes. But
functioning as we do in the real world, we are forced to deal with
the reality of jewish marital and familial situations which are far
from ideal.
Some problematic situations which have to be confronted
include the following:
1) When, if ever, may we turn a child away from a yeshiva?
2) What are the options of a teacher who discovers that one of
his students is, by halacha, not considered jewish? May he
continue to teach Torah to this child in class?
3)Does the halacha allow us to expel a child from a yeshiva?
If so, when?
4) What rules are we to follow concerning non-jewish children

19. This approach is verified by a question which was posed to R. Moshe Feinstein
('i jlJ'tl .~ i"1'

,nor.! 0111K). We have a rule that a nllchr; is forbidden from

learning Torah (J"' i1~'ln). A rebbe who was teaching a class where one student
wasn't Jewish questioned whether he isn't violating the prohibiton of
'l!l7
"'IUJl'l jon 1(7 by helping this non-Jewish child to study Torah which is a sin
for the child. Rav Feins~in answers thai Ihe rebbe sho~ld continue to teach the
class since the group is benefitting from his lessons. Private instruction of this
child, however, would be prohibited.
Another miligating consideration in the synagogue-sponsored social: Suppose
someone is about to commit a sin and one is able to convince him to commit a
lesser one. Is he then culpable for "placing a stumbling block before the blind"
by getting his friend 10 do somelhing wrong Ihat he hadn't inlerlded to do, even
if it is less serious that what he did intend to do? Rabbi Shlomo Eiger cites
'l!l", if one
several pllskim to prove thai this is not a violation of
accomplishes more than one loses. The singles' socials are very important to
maintain Jewish identity for the participants and to prevent them from
intermarriage. Even if some individual participants may unfortunately be lead to
marry improperly, yel the overall result is that much more will be gained than
will be lost.

'1"

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of a Jewish parent, and mamzerim (bastards)?

Regarding the admission of a 'lOchri (Le., the child of a parent
whose conversion is questionable or child of a mixed marriage
where the mother is not Jewish) into a yeshiva, we face two major
obstacles. One is the prohibition against teaching Torah to a
Mochri. This prohibition is usually taken to mean teaching Torah in
any form. 20 Even at the most basic educational levels we are
commanded nol to teach Torah to a Mochri. This would preclude
accepting a non-Jewish child into a yeshiva or day school at any

level where even basic Jewish knowledge is passed along.

The second problem which we face is our fear of
intermarriage. If we allow the child to go to school together with
other Jewish children, when he grows up they will remember him
as one of theirs, mistakenly assuming that he is Jewish since he
went to yeshiva with them. A similar problem arises with a
mamzer who, although completely Jewish, is not allowed to marry
another Jew. If the mamzer attends yeshiva as a child, how will it
be known later that he is nevertheless not to be married?
At the end of the second chapter in Ketubot, the Mishnah lists
different cases where a person may be trusted to testify on
something which he saw as a child.
OJoj)J. l/'("WI

no

o:nlJ. "Yil? O'll'J/'() l?/'(

In these cases one is trustworthy to testify as an adult

about what he saw as a child.
Among the examples brought,!1 a man's word concerning his

20. Rabbi Akiva Eiger goes so far as to say that you may not teach a Gentile who
wishes to convert even basic laws such as those Found in lny lrl7W ,1Y';;'.
Others take a different approach. Rav Feinstein contends that we would not be
allowed to teach him arcane or intricately involved material unmJ i'0V). But the
straightforward laws are suitable material for instruction of a potential convert.
The r<"lu"mo says that one is only forbidden to teach a Gentile the secrets of the
Torah ('10). Although in practice the ruling of Rabbi Akiva Elger is not
followed. we ought to consider it when discussing a non-Jew who has no
intentions of being proselyti~fd
nnlT.l '111m).
21. Such as l'mnn 'Jl"l' and ,lJl/l Ol'i'.

("""r<

SYNAGOGUE MEMBERSHIP

childhood memories is used to certify that someone is a Cohen. For

example, testimony that the individual in question used to leave
school early to cleanse himself before dark so that he would be able
to eat terumah is sufficient evidence to confer Cohen-status upon
him. Certainly, then, the nochri attending the yeshiva will be
assumed by his classmates to be Jewish. u The child will grow up
with the presumption of being Jewish; he will think he may marry
a Jewish girl simply on the basis of this false assumption.
Paradoxically, our fears of intermarriage are better founded if
the conversion is questionable than in a case where the child is
definitely not Jewish. In the former case, not only will the children
vaguely recall that their classmate was Jewish, but they may
remember that he was even converted, not realizing that the
conversion was invalid. Erroneously they will assume that he is a
Jew and eligible for marriage within the community. But a child
who was known as not being Jewish will not so readily be accepted
as an adult.
Our second reason for excluding non-Jewish children
subsumes the former. The fear of misleading our children would
bind us even in an early childhood setting. Thus, even if no Torah
learning is taking place, a child~care environment run under Jewish
auspices should not accept a non-Jewish child. 23

22, What do we do with a child of a mixed marria~"" wher"" the mother is Jewish
and the falher is a "ochri7 In his responsum, Rav Feinstein brings an opinion
Ihal the dictum ""IIV:)
':>K""It" n:;l ':>jI K:)11 O":)jI means that Ihe child is a
kosher nonJew! That is the opinion of Rashi and Tosafol. brought down by
the K"\U,11IJ. Acha'o"im discuss Ihe question of what to do if such a baby boy
is born on Shabbal. Do we do the brit milah on the following Sabbath? Rabbi
Akiva Eiger (01':>'0 nl:;l':>" '"1'':> 0'1V1"n) quotes authorities who say thai we don't
since the child is a noch'i, and his circumcision is an act of conversion, and nol
a 111YO ':>IV ,""1':>'0 which alone is allowed on Shabbat. He is not a mamzer, but h""
still must be converted in order to be considered Jewish.
Although this opinion is ,an interesting one, it would appear IhM il is
generally not accepted for practical purposes.
23. A question arises when a Jewish organization ;s only loosely conn""cled wilh a
program, such as a Head Slart program rUn by Ihe government which renls
rooms in a shul or a yeshiva building. Here everyone knows that Ihere are all
kinds of children in the class and no one, it is assumed, will draw any erroneous

,,:>,,,

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THE JOURNAL OF HALACHA

A further dimension to this problem derives from the biblical

injunction requiring the Jew to honor the Cohen, as the verse
commands, "and you shall sanctify him."u Consequently, we
always give the Cohen the first aliyah when reading the Torah, as
a form of recognition of his exalted status. What is the procedure
if there is no Cohen present? The Gemara States:

"7'~n"

"'''!lm t,,:1 ow 1'K

If there is no Cohen present the package [connection]

has been broken. U
Rashi offers two possible explanations of the talmudic phrase:
1) The Levi may be given the first a/iyah in place of the
Cohen, if we choose to do so.
2)We may not give the aliyah to the Levi [since we want to
preserve the uniqueness of the Cohen's status,]
Rabbi Joseph Ber Soloveitchek explains that according to
Rashi's second interpretation we are blurring the distinctions
between the various categories of Jews (7K'W':l D'on1'1J).16 This
underscores Judaism's concern about preserving family lineage in
KUiI Yisrael. The commandment of sanctifying the Cohen nnw, in)
requires of us to remember the difference between the Cohen and
Levi at all times. Rav Soloveitchek suggests that the special
punishment prescribed for someone who calls another a "mamzer"
or a slave is due to violation of this prohibition, lnlU'i'l,21 Clearly,

conclusions. However. if the playgroup or class is sponsored by the yeshiva, one

would think that the yeshiva should not accept a non-Jewish child. or it would
be guilty of 1,y 'lll7.
24. 'n ,/(":l /(1t"1.
25. '1"1 i'1ll I'll').

26. This reasoning clarifies the ruling that we are permitted to give the first aliyall
to a C:ln "1':l7n even if he is a Levi. His being honored with the first Illiyllh will
not lead anyone to conclude that as a Levi he is being honored as a Cohen, but
rather that he is being honored because of his Torah knowledge. However. Rav
Soloveitchek, himself a Levi and a til/mid chacham would very often decline 10
accept the first Illiyah in the absence of a Cohen, in order to teach this principle
of this view in Rashi to his talmidim.
27. It is for this same reason, to preserve the purity of lineage of the Jewish nation,

SYNAGOGUE MEMBERSHIP

then, for the reasons mentioned, a nochrj may not be permitted to

attend a yeshiva.
Admission of a mamzer is certainly not proscribed by the first
argument. since one is permitted to teach Torah to a manner. But
the second objection would appear to govern his case as well as the
case of the non-Jewish child. Ideally, we should have a separate
but equal school for mamzerim to avoid possible intermarriages; in
the absence of such an option, however, we are forced to educate
the mamzer together with other children.

"""

Administrators in a yeshiva are obligated to investigate that a

child is Jewish before enrol1ing him as a student. But what happens
if they have been negligent and a non-Jewish child in the class is
entrusted to a teacher for the purpose of education? Would he/she
be required to quit his/her job in order 10 avoid teaching such a
child?
Rav Moshe Feinstein was asked such a question: u a man was
hired to teach in a community yeshiva; among the children in his
class were some who were actually non-Jewish but assumed by the
community to be Jewish. They were being brought up as Jews and
were sent to the local day school. Was the teacher obligated 10 quit
his job in order nol to violate the prohibition of teaching Torah to
'JOchrim?
Rav Feinstein instructed him to proceed according to the
following predictable ramifications of his actions:
The school will probable hire a non-observant (or at most a
less-observant) teacher who will offer the other children an inferior
education. Another possibility is that the other parents may be so

Z8,

that Rav Soloveitchek has recommended thai today in America boys at day
schools and yeshivot ~ encouraged to incorporate -In;)i1- or '1?i1" into theil
names when handing in reports or taking exams in Hebrew. Many American
Jews do not know whether they are 0');'1;). e'l?, or e'?K'IU'. The mit~vah of
lnW'?' reqaire5 of uS that we preserve the pure lineage of all our people.
'l nlr< 1";) '0 'TlIOl pI( :-JWl:I n\')I<.

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62

indignant that they will withdraw their (Jewish) children and send
them to public schools. The entire yeshiva may collapse as a result
of the teacher's leaving. If such be the case, the rebbe should not
quit. The fact thai a greater Qveirah (sin) will be precipitated by his
leaving the school obviates the need for the teacher 10 quit in order
to avoid the aveirah of teaching Torah 10 a nochri.
On the other hand, if the yeshiva would hire someone equally
qualified in the event of the current Tebbe's resignation, and
business in the school would continue 35 usual, Rav Feinstein,
while expressing hesitation at the man's losing his livelihood,
recommends that the teacher leave. However, according to Rav
Feinstein, in such a case a man is not obligated but only advised to
quit his job. l9

If the teacher does find himself teaching a child who considers

himself Jewish although technically he is not, Rav Feinstein
recommends that the teacher try to proselytize the child in
question. If he is past the age of Bar Mitzvah, the teacher can
explain his true status to him and convince him of the importance
of conversion. If the child is not yet of age, effort should
nevertheless be made to convert him. We can use the rule

l"

n'::I nl1' 7Y mu< 1'7'::IOtJ TOy 'l

A child may be ritually immersed for the purposes of

convE'rsion under the auspices of the Beth Din. 30
The conversion is valid because of the principle that "we are
permitted to do something which will be advantageous for a

29. Rav F~instein rl'lie5 h~r~ on som~ mitigating circumstances:

1) Ther~ ar~ other children in the class with th~ nochri. W~ hav~ already
encountered the principle of educating the group even if instruction of an
'l!lC,.
individual in the group violates
2) The l"vel of learning is not one of ptl)l sinel' the learning is only suprrficial
(see note 20).
3) The child is assumed to be Jewish. Although he d0e5n't clarify. we assume
this means that since, in all likelihood the child will be obSl'rvant this will be a
m::l1 for him.

'w

30. K' nUlnJ,

SYNACOGUE MEMBERSHIP

6J

person, even if he is not present." In other words, even though the

child, as a minor, cannot effect a legal conversion, we can grant the
consent for him.
If the child will grow up to be an observant Jew, we would
indeed do him a great favor by converting him. But if the parent is
not Jewish, what privilege are we bestowing on the child? Is it
reasonable to assume he will be able to live as a good Jew? We
might even reason that we are harming him by the conversion,
since once he is a Jew he will be judged more harshly (by Heaven)
than as a nochri. But here we must take into account that the
teacher is religious and presumably there are others like him in the
school. Rav Feinstein relies on the probability that the teachers will
be able 10 influence him to be an observant Jew.

And even if it is questionable whether he will be

observant, it is definitely a privilege for him [to be
Jewish].
However,
asserlion. J1

he

does

not

further clarify or quantify

his

31. Rav Moshe seems to assume that the majority of children coming oul of such a
day s.::hool will be observant. But if we have a doubt which way the child will
go, clearly we don't say "meanwhile, convert the child and wait to ~ how
things turn out." Based on whether the child ends up observant or not we will
dedde if the conversion was valid. If he grows up to be observant we will say,
yes, he was converted. If he turns out non_observant, we will assume that he is
still a "ochri. Although this might be a tempting approach, we have a precedent
disqualifying such a view.
The precedent is found on a responsum of Rabbi Elyah Pruzener (maternal
grandfather of R,lV Soloveitchek) in (K"" .'0 "llyn pK jf.>n> In',,,, 1"1:1"1'1. He
rules that we cannot ust' the principle of l'l!lJ
I'~l if one is not
convinced from the outset that he is affecting a nlJl.
The Mishnah at the end of Yevamot indicates that. man may not give a get
to his wife unless she is prest'nt. Suppose, though, the man is on his death bed
and his wife will require Yibum, after he dies. We don't know if she will be
interested in Yibum. Maybe she will prefer a release (chalituz) and have
difficulty obtaining it. If she would be divorced from her original husband, she
would be relieved of any obligation after his death. The Gemara and the poskim

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Rav Feinstein proceeds further to state that even if we have

reason to believe that the child won't be observant, we should still
attempt to convert him. Here the assumption is that one is better
off being a non-observant Jew than a nochri. This is not an
obvious affirmation. We might try to reason that if he will violate
the commandments of the Torah, he might be better off remaining
as a nocnri. Since a nocnri is not obligated in many mitzvot, the
child's actions during his lifetime would be judged more leniently
than if he were to remain in his original situation.
The rationale behind Rav Feinstein's assertion that it is better
to be a non-observant Jew than a nochri is as follows: The person
in question will be judged for his transgressions as a sllogeg, an
inadvertent sinner, since presumably he is brought up nonobservant and is not aware that what he is doing is wrong. On the
other hand, whatever mitzvot he does do will count in his favor.
Rav Feinstein's evaluation contradicts the opinions of most other
rabbinic leaders through the ages who felt that one was better off
remaining a Gentile than becoming a non-observant Jew. J2
According to the view of the majority of poskim, we should not
attempt to convert a child unless we feel assured that he will be
observant when he matures.

discuss whether tll::l' C'i7~J ll1\1iK' 1J1 .,:nO:l is considered a valid divorce.
Maybe this is a case of l'l!lJ K'IU OiK' 1':11 (s~ K"l:)i 'K '0 ilJo/;T PK). Many ask
why we have a problem at all. Why not just give the get and ask the woman
later. If she agrees. the get holds. If not. it is nulliFied and she may have Yibum.
In response, the Halichot Eliyahu quotes the Netivot in asserting that I'JI only
applies if at the time of the act we are convinced that it will turn out to be a
"':II. Thus, for example, the Rabbi makes an l"'IU::In J"'lI on behalf of others
assuming thai this is a nl:ll for them. At the time, we ne sure that others will
consider it a nlJI. Since we a.e sure of lhe nl:lt when we do the act of ;T:J! the
eruv is valid. However, if we are not convinced from the very oulset that it is a
nUl, we can not utilize the principle of l'JI.
32. See (i1", '0 J"n) IUK ""IU that the majority of rabbis consu1t~, including Rav
Yitzchok Elchonon, felt that when the parents were not observant. the act of
conversion for the child could not be considered a i1'JI.
This is also the opinion of Rav Soloveichek.

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SYNAGOGUE MEMBERSHIP

We have dealt with "biological" reason for denying a child admission into a yeshiva. but there are other factors which might
warrant exclusion of expulsion of a child from our schools.
Suppose a child's parent is not living up to his/her obligations
as a Jew. May we suspend a child's Jewish education because his
parents do not pay tuition? Are we allowed to deny a troublesome
Jewish child education in a yeshiva if his recalcitrant behavior
might negatively affect his peers?
The Shulchan AruchJJ clearly states that if someone is a
sufficient baal aveirah (sinner) we should exclude him from the
community. Various levels of punitive isolation from the
community and normal or religious intercourse, such as cherem
and niddui, are described for different offenses. His need to belong
to the community is used as leverage to force the sinner to comply
with a directive of the Torah or an edict or decision or the rabbi.
The Ramo rules:
l
nK Ilru :" "3::1 '::1113' K7llJ "7Y "l'Jnn7 '''::17 mllJ, llJ'l
nK 1'7Y 7::1P'llJ ,y nODn n'::Il'J mllJK1 '!Jon n'::lI'J P):::l
l',il

Permission is granted to Beth Din to be strict with

him and not circumcise his children [even though
Beth Din is responsibile to assure that every Jewish
child is circumcised] and to chase his children out of
school and his wife from the synagogue until he
accepts that which they are trying to force him to
do. J4
An objection might be raised as to the justification for such
action. Why punish the sinner's wife and children for something
which they didn't do? The Taz queries:
~'Klm

33. l"tl "'':>11I "lI'1 "''''.

34. ,,) n1J':>;'l.

nl'J 1')::1

~i1Klm

ilI'J mllJK ,x1)n Xlii DK

THE JOURNAL OF HALACHA

If he sinned, what sin did his wife commit? And what

sin did his children commit7lS
The answer, quite simply, is that restricting his wife and
children is the single most efficacious method of forcing him to
comply with Beth Din's wishes. The rabbis felt that his family's
suffering would have the greatest impact on the sinner. He would
agree to obey the law, in the particular area in which he is remiss,
in order to afford his wife and children a proper religious
environment. Using the children as leverage is not to be confused
with punishing them unjustly.
Another objection might be raised. How do we permit
violation of a mitzvah such as Talmud Torah, Brit Milah, and
embarrassment of a fellow Jew (the wife and children) in order to
achieve our goals?
In Yevamof, the Talmud teaches:
nil/V' c1p~ j"lnil 10

,:::l,

"PV7 C'O::Jn

Kn7'0 ""'071

,':::l

;'VltJ

n::J ltJ'

nK,m,

The power is in the hands of the sages to uproot

something from the Torah even with a positive
action, if the purpose of this is to solve a one-time
problem or a very important malter.*
Obviously, forcing a man to observe certain critical mitzvot
may be termed a "very importa~ matler."
One might want to exclude a child from yeshiva if his parents
do not pay tuition. But if the child would be sent to public school
as a result, such a move on the part of the yeshiva is precluded.
Even assuming that
the child will be transferred to another
yeshiva or that the parents will acquiesce, it appears questionable
whether this would be considered an important enough mailer to
warrant uprooting from the Torah the mitzvah of not embarrassing
our fellow man.

35. This ruling is brought in the name of Rav Pahiel Gaon. The
Mahushal at lhe end of BQ'VQ KQmmQ.
36. .,

J'111':l:l'.

TQZ

quotes the

SYNAGOGUE MEMBERSHIP

The final issue to be discussed herein concerns expulsion of a

delinquent student from a school. Some rabbis argue that children
younger than Bar Mitzvah are halachically considered too young
for judicial punishment (T'WJUI 'J:J Hb) and may therefore not be
expelled from school for any misbehaving or mischief they happen
to do. In my opinion, this analysis is not wholly correct.
Certain insights may be gained by turning to the talmudic
debate concerning the permissibility of meting out punishment on
the Sabbath. Jewish jurisprudence functions on the principle "no
punishment is inflicted on the Sabbath."J1 Nevertheless, Rabbi
Akiva Eiger J& does on occasion permit a miscreant to be jailed on
the Sabbath, because he distinguishes between different forms of
incarceration. Imprisonment as punishment for a deed already
committed is not allowed. Sometimes, however, we imprison people
in order to prevent them from doing a terrible deed. If a man
wishes to run away on Shabbat, leaving his wife an Agunah (an
abandoned wife whose husband's whereabouts are unknown and
who may not remarry), we immure him even on Sabbath. This is
permitted and is not to be seen as a punishment; taking the wouldbe sinner into custody is a deterrent. 39
His distinction can serve as a basic guideline in determining
how to deal with an outrageous child. It is our opinion that we
may expel a child from school for being a nuisance, even if by
Jewish law he is not accountable or punishable. Our rationale in
essence is that we are not punishing him. We are simply trying to
prevent him from affecting his peers or other children in the
school. Parents who spank their young children when they
misbehave are not considered in violation of the principle that a

37. , r"O "'"71/1 n"ll<.

36. Cited by.' r-O 1.'"710 n"ll<" ." ml<

.,nnJ i1ll/llJ.
39. Rav Akiva Eiger Further says, in the name of r;shonim, that someone who
dOe5n't want 10 eat matzoh or sit in a succah may be forced to do so on Yom
Tov. The Gemara in Ketubot states 11/l!ll I<~nl/l lY 1ml< l'JlJ. This is not a
punishment but rather a form of m1~1'Ji1 7Y i1!11;).

67

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minor is not subject to punishment. The hitting is intended for

educational purposes and not primarily as retribution.
Our analysis of problematic situations has been intended only
to suggest directions in which to seek solutions. Let us hope that
we can improve our community sufficiently so as to obviate the
need for clarifying the topics covered herein.