On March 27, before a huge crowd in Boston’s historic Faneuil Hall, the mock trial team of Boston’s Maimonides School won the championship for the Commonwealth of Massachusetts and became eligible to compete in the national competition scheduled for Atlanta on May 8 and 9.
So begins a saga that has many lessons from Megillat Esther.
Here was the rub. May 9 is Saturday, and the National High School Mock Trial Competition (NHSMTC) has traditionally been held on Friday and Saturday. Through the Massachusetts coordinator, Maimonides requested an accommodation for Sabbath-observance but was rejected because NHSMTC had ratified a policy four years earlier not to accommodate Saturday Sabbath observers.
In 2005, the New Jersey statewide competition champion was the Torah Academy of Bergen County, another Modern Orthodox yeshiva. Finals were to be held in 2005 in Charlotte, North Carolina, on Friday and Saturday, May 6 and 7. The usual schedule for the mock-trial finals calls for each team to do two mock trials on Friday and two on Saturday. These are scored confidentially by panels of three judges.
After the four qualifying rounds, the results are announced, and the two top teams face each other in a championship match held on Saturday afternoon. The Torah Academy requested only that its two Saturday rounds be moved to Thursday and Friday.
The request was initially rejected. But NHSMTC contracts with the host state’s bar association to administer the competition, including arranging courtrooms, selecting judges and scoring panels, and creating case materials. That year the North Carolina Trial Lawyers’ Association ran the event, and when its head, Richard Taylor, learned of the refusal to accommodate, he unilaterally ordered that the trials be rescheduled to respect the team’s Sabbath observance.
Although no one filed any protest over the rescheduling, and the teams from across the country expressed their respect for the New Jersey Sabbath observers with whom they interacted over Shabbat at the hotel, NHSMTC resolved never again to make accommodations.
Judge George H. Carley Sr. – a Georgia Supreme Court judge and very influential on the NHSMTC board – argued that accommodation would be impossible for an “Islamic team” that wouldn’t participate on Friday.
When the NHSMTC board thereafter formally adopted a no-accommodations resolution, North Carolina and New Jersey took principled stands by withdrawing from NHSMTC. And New Jersey Congressman Steve Rothman won unanimous passage of a House of Representatives resolution calling on NHSMTC “to accommodate students of all religious faiths.”
When Maimonides was crowned the Massachusetts title-holder in 2009, NHSMTC graciously responded that the Maimonides team would be “accommodated” by being permitted to compete in two trials on Friday and then forfeiting its two Saturday trials.
A captain of the Maimonides team was Michael Kosowsky, son of Maimonides graduate Jeffrey (“Jeff”) and Miriam Kosowsky, herself a former prosecutor and assistant coach of the Maimonides team. Other captains were Leah Sarna, daughter of professors Jonathan Sarna and Ruth Langer, and Harry Chiel, son of Jonathan and Judy Chiel. The Kosowskys had a bat mitzvah of their daughter Avigayil scheduled for May 9, and the family’s attention was divided. Michael was needed in Atlanta, and while his mother prepared for the family simcha, his father took on the task of pressing for an accommodation like the one NHSMTC had made in 2005.
Jeff Kosowsky urged the Maimonides leadership to challenge NHSMTC’s refusal to reschedule Maimonides’ Saturday trials and to move aggressively for an adjustment of the trial schedule so that the school’s team could participate fully and have a chance to become national champions. He was encouraged by his friend Daniel (“Danny”) Edelman, a graduate of Maimonides and Princeton who is now a New York partner at Crowell & Moring, a nationally renowned law firm.
Danny’s wife, Nancy, is a teacher at the Torah Academy of Bergen County, and in 2005 he had participated in the successful effort to secure a religious accommodation for the New Jersey champions. On April 14 – less than a month before the scheduled Atlanta finals – Danny called on his former Princeton classmate Alyza Lewin, my daughter and law partner, who had spent one year at Maimonides when I was a visiting professor from practice at Harvard Law School.
The Maimonides leadership was skeptical about the prospects for success if an all-out battle was undertaken with NHSMTC. Nonetheless, Jeff and Danny got word of the rejection by NHSMTC to the Anti-Defamation League. Deborah M. Lauter, its national director of civil rights who had served as director of ADL’s Southeast Regional Office in Atlanta, promptly sent a letter to John Wheeler, NHSMTC chair, protesting the refusal to accommodate.
Wheeler’s response to the ADL, dated April 20, was as inflexible as one could imagine. He defended the competition’s being held over a weekend rather than in the middle of the week, even though the ADL request had sought only to reschedule two of more than 150 scheduled trials.
I first learned of the controversy from Alyza and Danny Edelman on April 19, 2009, and my own feeling – communicated within a day to the Maimonides leadership when it called me – was that the directive given by Mordechai to Queen Esther applied to this situation: “U’mi yodea im l’et ka’zot higa’at l’malchut?”
The Maimonides team had, I thought, been privileged to win the Massachusetts championship in order to strike a public blow for Sabbath observance.
I felt strongly – contrary to some opinions expressed among Maimonides personnel who were reluctant to press the issue further – that it was important to continue the battle, and that winning it would be a Kiddush Hashem.
My legal strategy was two-pronged. First, I suggested filing a complaint with the Civil Rights Division of the United States Department of Justice and specifically with the special counsel for religious discrimination, Eric Treene. These kinds of complaints can lead to governmental investigations, to lawsuits filed by the United States, or to friend-of-the-court filings in individual cases.
My second prong was the threat of a civil lawsuit. Federal law provides in Section 1983 of Title 42 of the United States Code for a civil remedy whenever there is a violation of a federal constitutional right, and I believed NHSMTC’s involvement of the local court systems and bar associations turned its activities into “state action” subject to constitutional limitations.
Our complaint letter went to the Justice Department on April 22, 11 business days before the critical May 8-9 weekend, with a copy to Wheeler. The letter threatening a federal lawsuit was withheld while Alyza, Danny, and Jeff galvanized public opinion and made around-the-clock efforts to bring the very sympathetic case of the Maimonides team to public attention in the media.
The Maimonides leadership asked me whether I would be working pro bono publico. I replied in an e-mail that I did this kind of work leshem shamayim, and not for fees. I also told them the lesson I thought should be learned from Mordechai’s warning to his niece Esther: “Im hacharesh tacharishi ba’et ha’zot” – Esther was not permitted to remain silent but was obliged, as the Midrash tells us, to become the sanegor (defense attorney) for Klal Yisrael. It was my duty to fight this battle to what I believed would be its successful conclusion.
The total number of e-mails sent or received between April 14 and May 8 on this project exceeds 6,500. Many were written between midnight and 6 a.m. – proof that “all-nighters” were spent on this effort. Alyza wrote and received e-mail messages on the mock-trial issues even while waiting in a hospital with two of her children.
Jeff, Danny, and Alyza enlisted the support of political leaders in Massachusetts and Georgia, as well as high-profile congressmen. They made media contacts and dealt directly with respected lawyers in the Georgia Bar. Together with Richard Nagel, who had been on the NHSMTC board and left it when it voted against religious accommodation, Jeff analyzed the “power-matching” scoring system used in the mock trials and demonstrated its statistical flaws. The group drafted an impressive packet of “talking points” and supporting documentation that they distributed widely.
They also contacted Jewish leaders in Atlanta. Rabbi Michael Broyde of the Young Israel of Toco Hills and a professor of law at Emory University wrote a compelling letter to NHSMTC urging that American values required accommodation to all segments of American society. Rabbi Yossi New, a longtime Chabad rabbi in Atlanta, with whom I had worked about 15 years ago when we succeeded in litigation to display a Chabad Chanukah menorah in the rotunda of the State Capitol in Atlanta (winning that case by an 11-to-0 vote in the U.S. Court of Appeals for the Eleventh Circuit) introduced us to Rabbi Alvin Sugarman, a Reform rabbi who conveyed to leading non-Orthodox lawyers and other public figures in Atlanta his strong outrage over the NHSMTC decision.
On the afternoon of Friday, May 1 (after we sent Wheeler our “demand letter”) we learned that a letter had been sent by the Department of Justice to the Georgia court system telling the judges that, as beneficiaries of federal money, the Georgia courts may not participate in conduct that effectively discriminates on the basis of religion without jeopardizing their right to federal funding under the “Safe Streets Act of 1968.” The four of us welcomed Shabbat that evening thinking that this was the death-knell of NHSMTC’s discriminatory policy.
But our adversaries yielded no ground. The Georgia State Bar controlled the competition in Atlanta and had the power to implement the requested accommodation regardless of NHSMTC wishes (as the North Carolina Bar had done in 2005). Nonetheless, the president of the Georgia Bar published an open letter in Atlanta’s daily legal newspaper claiming he opposed the NHSMTC position but that the Bar’s contract with NHSMTC required it to abide by the organization’s rules. The contract, he said, had no “wiggle room” and prescribed huge liquidated damages for any breach.
This view had already been communicated to Alyza in a long, frustrating conversation she had with the Bar’s general counsel, William Smith (who, Alyza discovered later, is called “Doctor No” by cognoscenti of the Georgia Bar). Alyza had called Smith’s attention to the contract provision that prescribed a $50,000 penalty only if the Bar withdrew completely from hosting the competition, not if it unilaterally changed one of NHSMTC’s “rules.”
I wrote a public response to the Bar president’s letter that reminded the Georgia Bar of the timidity it showed in 1960 when Dr. Martin Luther King and 75 students began sit-ins in Atlanta stores that had been closed to blacks. By hiding behind a contract term which, the Bar president professed, he personally opposed, the Georgia Bar was repeating the error it committed in 1960 when it cited trespass laws as preventing support of the civil rights protesters. The Bar could readily have interpreted the contract as not penalizing the same schedule change that the North Carolina Bar had courageously implemented in 2005.
In a letter of May 6 to John Wheeler, I noted he had claimed that only 7 of 43 teams had volunteered in 2005 to compete against the Torah Academy in an “early round” and, at the same time, argued that competing in an “early round” gave the team a “competitive advantage.”
If so, I asked, why did not all the teams in 2005 seek to participate in the Thursday afternoon specially scheduled trial arranged for the Torah Academy team? I ended with “your continued refusal to permit the Maimonides students to participate fully in the competition will subject you to an action for damages and attorneys’ fees under federal law. I hope you do not make such legal action necessary.”
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As May 8 approached we were getting national news coverage of the issue, but the outlook appeared grim. One of Rabbi New’s recommendations, Jodi Fleisig, contacted Channel 2 news in Atlanta. It did a very sympathetic story on the evening of May 4 and Fox News broadcast the photogenic and well-spoken nine members of the Maimonides team after they arrived in Atlanta on Wednesday, May 6. On the same day The New York Times ran a favorable story with a large photograph of the team celebrating its Massachusetts victory.
Then, when things looked most gloomy, at about 9:30 on Wednesday night, May 6, Alyza was returning from a speech she had given in Teaneck, New Jersey to a meeting of the Rabbinical Council of America, where she had hoped to be able to announce we had won a battle against religious intolerance. Danny, who had just seen her off after she visited with him, was discussing the endgame with Jeff. Suddenly, “v’nahafoch hu m’yagon l’simcha u’m’eivel l’yom tov.” Our sadness turned to great joy.
We were told that an accommodation would be made because of a decision by Chief Judge Doris (“Dee”) Downs of the Fulton County Superior Court. She learned of the discriminatory policy and of the Justice Department’s letter, and she did what the Georgia Bar had been unwilling to do. She arranged a conference call that evening with John Wheeler and with Judge Carley and told them that unless an accommodation was made for the Maimonides team, the courthouse and its courtrooms – which were being vacated on Friday and Saturday so that the mock trials could be held there – would be closed to the competition.
Wheeler saw this left him no choice. In an unapologetic public statement, he announced that under the compulsion of the Fulton County court, NHSMTC would conduct special mock-trial sessions for the Maimonides team on Thursday, May 8, and have a third round for them on Friday, May 9. Maimonides ultimately placed 20th out of 41 teams, a respectable finish for a first-time national competitor.
The Maimonides team left the courthouse on Friday to make the nine-mile trip to the Young Israel of Toco Hills. They were treated as visiting heroes there and in a neighboring Orthodox shul. That Shabbat, at his daughter’s bat mitzvah celebration, Jeff was told that Maimonides’ achievement was being spread by word of mouth in New York’s Modern Orthodox world, that it was the kind of Kiddush Hashem that occurs “only a couple of times in a lifetime,” and that it will be spoken of and taught in yeshivas as an illustration of how Orthodox Jews should stand up for their rights.
Nathan Lewin is a Washington attorney who has appeared before the Supreme Court in behalf of many Orthodox causes.