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).
Fletcher Yarbrough was a Texan who is now a senior partner at Carrington Coleman, a top Dallas law firm. I e-mailed and spoke on the phone with Yarbrough, who agreed that the firm would take on this potential litigation pro bono. He enlisted, as the Carrington firm’s lead attorney in preparation for trial, Richard Rohan, a Jewish partner who is the son of Holocaust survivors and has many ties in the Texas Jewish community, including its day schools.
I discovered later from a conversation with a member of the Beren board that the local ACLU chapter and the ADL had been consulted about possible legal proceedings. They had advised that since TAPPS was a private organization, its decision was not constitutionally vulnerable, and that TAPPS was legally entitled to implement its private prejudices. Although it believed there was no legal recourse, ADL wrote a strong letter to Burleson urging him to reconsider voluntarily. The letter failed to move him.
What these legal advisers had overlooked, however, was that the private organization had arranged to conduct its semifinal and final games on the public facilities of a public-school district.
The 2009 struggle for Shemirat Shabbat on behalf of the Mock Trial team of Boston’s Maimonides School (which I described in the May 15, 2009 issue of The Jewish Press) ended when a Georgia state court judge learned from a letter sent (at our request) by the U.S. Department of Justice that federal funding was jeopardized by the local court’s participation in religiously discriminatory conduct. The judge said the courts could no longer be used for the mock trial finals unless a religious accommodation was made for the Maimonides team. This forced the Mock Trial group to move up Maimonides’ competition to avoid Chilul Shabbat.
In the Texas case, there was not enough time to seek the assistance of the Department of Justice, but the participation of the public school gave us grounds for asserting that the TAPPS decision was an unconstitutional preferment of religions that observe Sunday as Sabbath over religions such as Judaism and Christian denominations such as Seventh-Day Adventism.
Texas is also one of 12 states that adopted a local “Religious Freedom Restoration Act” after the Supreme Court declared unconstitutional a similar federal law protecting religious observance notwithstanding an unexpected hostile 1990 ruling by the Supreme Court. That law protects religious “exercise” against governmental restriction unless the government has a “compelling government interest” to support a burden on religious observance that results from government conduct.
There was obviously no “compelling” interest to maintain a Friday night and Saturday afternoon schedule for the concluding round of the Texas tournament. And the TAPPS rule permitting rescheduling could be viewed by a court as a binding contractual agreement between TAPPS and its members, including Beren, with the Beren students being “third-party beneficiaries.”
One refrain I heard time and again (and continue to hear) in discussions regarding the case is that the Beren Academy agreed to live by the TAPPS schedule for the final four competition when it joined the organization, and that it should not, on that account, be permitted later to challenge the schedule. Even if the facts were true (and they are not because the TAPPS rules authorize rescheduling), initial admission when an illegal practice is in effect does not foreclose a later legal challenge to the illegal rule.
For example, the military’s uniform regulation requiring soldiers to be bareheaded indoors was in effect when my erstwhile client Simcha Goldman joined the Air Force. Nonetheless, Dr. Goldman was permitted to challenge that regulation by wearing a yarmulke in an Air Force hospital after joining the service. Indeed, only by joining when an unlawful rule is in effect does one obtain the necessary “standing” to contest the rule in an American court.
While Richard Rohan and lawyers in his office quickly summarized the factual allegations for a complaint to be filed in federal court, I drafted the legal grounds for our case against TAPPS and the legal memo to be submitted to the judge who would be assigned our case. I was traveling to New York from Washington and, thanks to Amtrak’s Acela, was able to do research and draft portions of the complaint while the train made its way north.
I was reminded of what my grandfather, Rabbi Aaron Lewin, zt”l, the chief rabbi of Rzeszow (“Reisha”), wrote in the introduction to the first volume of his classic work on Torah called HaDrash V’HaIyun. He thanked the Polish government for having given him, as an elected member of the Sejm (the Polish parliament), first-class carriage each week from Rzeszow to Warsaw for meetings of the Sejm. This facilitated composition of his chidushei Torah, written in a comfortable train. By the same token, I was grateful to Columbia Law School – where I give a seminar on “Religious Minorities in Supreme Court Litigation” each spring semester – for sponsoring my agreeable working commute from Washington to New York.
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In our draft complaint we naturally listed the Beren Academy as the first plaintiff, and followed it with the names of team members and parents. I was, however, shocked to discover that the school not only did not agree to be a named plaintiff but that its administration and board members were discouraging parents and team members from joining in any lawsuit on the ground that litigation was “inflammatory.” The goal of obtaining a court order directing religious accommodation was, to my surprise, actively and vigorously opposed by the school administration. (The Maimonides experience had been eerily similar.) Parents indicated to us that they were urged to withdraw their names, and the names of children who were team members, from the court pleadings.
This, I was told, was the “high road” – to accept the ruling that the team had willingly surrendered its right to participate in the semifinals in order to demonstrate to the students on the Beren basketball team and to the world the sacrifice that has to be made for Shemirat Shabbat. The school made it clear in its post-litigation press release that it disapproved of the lawsuit and had refused to join it as a plaintiff. Richard Rohan and I were even warned on Wednesday night that if we filed a lawsuit on Thursday and it succeeded, the school would direct the students not to play and would, on its own, declare that it was “forfeiting” the semifinal match.
That approach directly conflicts with the efforts I have made over the past four decades to have American law compel accommodation to religious Jewish observance. Yiddishkeit in America is, in my view, furthered if life is made easier for Shomrei Shabbos. Sacrifices for Sabbath observance will have to be made during the life of any Torah-observant Jew living in the modern world, but that lesson is neither learned nor appreciated by making high school students swallow, with no court protest, bigoted acts directed at Shomrei Shabbos. While I do not doubt the good faith of the Beren administration, I seriously question its judgment if it is teaching its students to suffer prejudice and not stand up for their rights.
This opposition continued late into Wednesday night, and a prominent Modern Orthodox rabbi called me on Thursday morning to request that I delay the lawsuit until Friday. When I turned him down, he asked for a message to be conveyed to the board. I replied that the school should join the lawsuit as a plaintiff. Fortified by compelling e-mails we received in the wee hours from one student who explained why he wanted to remain a plaintiff and from team captain Isaac Mirwis, we filed the complaint and request for an injunction on behalf of three team members and three parents early on Thursday morning.
Less than two hours after they notified Burleson that we had filed the case, the Carrington lawyers learned that Burleson called the coach of the Beren team to notify him that the school was reinstated for the semifinal match, and that the game would be played early on Friday. After more discussions with the TAPPS lawyer, in which federal district judge David C. Godbey participated, the case was settled with rescheduled times to accommodate Shabbos observance. Interviews Burleson gave after the case was resolved indicated he had no intention of ever relenting to public pressure, but that he feared a lawsuit.
Beren handily won its semifinal match, played at 2 p.m. CST on Friday, March 2, in Fort Worth, Texas, cheered on not only by its own supporters but also by administrators and students from the Seventh-Day Adventist school that had been denied religious accommodation in the past.
The state championship game was rescheduled to 8 p.m. on Saturday night, March 3. Battling back valiantly from an early deficit, the Beren team fought to within 4 points, losing 46-42. The winners’ trophy went to their opponents, but the Beren team won a glorious triumph over bigotry and adversity. An Orthodox Jewish high school basketball team reached the peak of Texas basketball competition without sacrificing religious commitment. The young men of Beren turned their skills and their prominence into a Kiddush Hashem that will live with them for all their lives and will smooth the road for other Shomrei Shabbos.
The fortitude and integrity of the Beren Stars brings to mind Mordechai’s observation to Queen Esther: “Mi yodeah im la’es ka’zos higa’at la’malchus?” – “Could it be that it was for this moment you reached greatness?”
Nathan Lewin is a Washington attorney who has appeared before the Supreme Court in behalf of many Orthodox causes.
About the Author: Nathan Lewin is a Washington attorney who was not involved in the Iowa state prosecution but who will serve as Sholom Rubashkin's federal appellate counsel.
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