On Tuesday, February 28, it was widely reported that the basketball team of Houston’s Robert M. Beren Academy had “forfeited” its place in the semi-finals of the tournament conducted by the Texas Association of Private and Parochial Schools (TAPPS) because it would not play on Friday night and Saturday. But a headline in Friday’s New York Times read: “In Reversal, a Jewish School Gets to Play.”
This is the story of what happened during those three days.
Beren is one of a few Modern Orthodox Jewish high-schools in Texas. Its male graduates customarily spend the year after graduation attending yeshivot in Israel. And it had a superb basketball team this year – good enough to make it through the preliminary rounds in the TAPPS annual basketball tournament. Those victories qualified it, along with three other Texas teams in a field of 32, for the final four – the select teams that compete in a final set of matches and then in the final game for the statewide championship.
And there came the rub. The games to be played by the final four were scheduled by TAPPS to be held on the night of Friday, March 2, and during the day on Saturday, March 3. The Beren administration and its basketball coach had successfully arranged with other opponents in the TAPPS league to reschedule matches that had initially been scheduled for Shabbat. The TAPPS bylaws and rules authorized rescheduling by mutual agreement. Beren’s potential opponent in the scheduled semi-final game, the Dallas Covenant Christian School, agreed it would compete early on Friday afternoon rather than in the evening to accommodate the Sabbath observance of the Beren team.
But when the agreement was presented by Beren to the TAPPS administration – and particularly to Edd Burleson, the founder and director of TAPPS – Beren received a jolting “no.” In an e-mail dated February 27 – the Monday before the scheduled Friday semifinal game – Burleson not only said that “the TAPPS Executive Board has voted to deny your appeal to reschedule certain games in the State Basketball Tournament on March 2 & 3, 2012,” but went on to castigate Beren for having participated in the early rounds of the tournament.
According to Burleson, Section 138(c)(3)e of the interminable and dense TAPPS Rules permitted only teams that would certify that they would play in the playoff games “as scheduled” to play in the earlier rounds. TAPPS declared that Beren had forfeited its place in the semifinals and assigned the team it had defeated by 27 points to Beren’s place in the final four.
There seemed to be no time in which to reverse this outrageous decision. The following day’s media accounts, including The New York Times in a featured full-length account, treated Beren’s exclusion from the TAPPS semi-finals as a fait accompli – much as it might report after-the-fact on an execution.
Beren enlisted Texas senator John Cronyn, Houston mayor Annise Parker, and other notable public figures in an effort to pressure Burleson to change what seemed, to most sensible observers, a foolish decision that smacked of religious bigotry. The TAPPS rules and bylaws declare proudly, in light of its normative Christian origin, that no game in any athletic competition run by TAPPS may be played on Sunday. Sabbath observance on any day other than Sunday was given no respect, even though TAPPS had admitted Jewish day schools and a Seventh-Day Adventist Academy located in Arlington, Texas.
The Seventh-Day Adventist school had been denied three requests for rescheduling of its basketball games. A semifinal soccer match in which it was a participant was rescheduled because all final four teams made the request, but the TAPPS administration decided it would never again make a similar rescheduling adjustment for religious accommodation.
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I was called about this case on Monday night by Etan Mirwis, father of the Beren team captain. My daughter and law partner Alyza – who was a full-time colleague in this battle – also was contacted on Tuesday by two individuals who had worked around the clock in a remarkably similar 2009 successful effort to reverse a discriminatory decision by the National High School Mock Trial Association to exclude the Mock Trial Team of Boston’s Maimonides School from a final round in Atlanta because Maimonides would not compete on Shabbat. These volunteers on our team are Daniel Edelman (a lawyer who was a classmate of Alyza’s at Princeton) and Jeff Kosowsky (a parent of the 2009 Maimonides Mock Trial team captain). They spent many hours providing advice, assistance, and encouragement over the following three days.
Given the very brief window before the semifinal game on Friday, it seemed that only a prompt court action could provide relief. The concluding round was to be played in the Dallas area, and any lawsuit would probably have to be filed in that city. I remembered a good friend and colleague in the formidable 1960 Harvard Law School class (which boasted such stars as Supreme Court Justice Antonin Scalia, the late former Chief Judge Richard Arnold of the U.S. Court of Appeals for the Eighth Circuit, presidential candidate Michael Dukakis, deputy attorneys general William Ruckelshaus and Phillip Heymann, senator Paul Sarbanes, Watergate prosecutor Earl Silbert, and many noted law professors).
About the Author: Nathan Lewin is a Washington, D.C., lawyer who wrote the 1983 New York Get Law and the COLPA amicus curiae brief in Avitzur v. Avitzur, the 1983 New York Court of Appeals decision that approved, 4-to-3, the constitutionality of a pre-nuptial agreement requiring the couple to appear before a bet din in case of divorce.
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