* * * * *
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, a former president of the Greater Washington Jewish Community Relations Council, has argued 28 cases in the Supreme Court of the United States and is an adjunct lecturer at Columbia Law School where he teaches “Religious Minorities in Supreme Court Litigation.”
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