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March 29, 2015 / 9 Nisan, 5775
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Playing For A Higher Authority: The Inside Story Of Beren Hoopsters’ Kiddush Hashem

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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.

About the Author: Nathan Lewin is a Washington lawyer who was president of the Greater Washington Jewish Community Relations Council between 1982 and 1984 and has argued many Jewish-interest cases before the Supreme Court and lower federal courts.


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Editor’s Note: On July 30, the firm of Lewin & Lewin, LLP, filed in the Supreme Court its brief in Zivotofsky v. Clinton, No. 10-699, on which the Supreme Court will hear oral argument in early November. The constitutional issue in the case is whether Congress had the authority to enact a law in 2002 that directs the Secretary of State to permit U.S. citizens born in Jerusalem to record their place of birth in their passports as “Israel.” Because the State Department has consistently refused to recognize any part of Jerusalem as being in Israel, the government has refused to implement the 2002 law, claiming it violates the President’s constitutional authority to “recognize foreign sovereigns.” This is the Introduction to the Zivotofsky brief written by Nathan Lewin, followed by a Summary of Argument.

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