Photo Credit: Troutman Sanders website
Attorney Avi Schick / Troutman Sanders website

In a resounding defeat for attorney Avi Schick representing the Association of Jewish Camp Operators and Orthodox Jewish parents, the chief judge of the United States federal court of the Northern District of New York handed down on Monday a point-by-point refutation of Schick’s arguments last week trying to overturn the decision by Governor Andrew Cuomo to close down overnight summer camps this year.

Chief Judge Glenn Suddaby rejected all but one of the arguments posed by Schick, a former deputy attorney general under Eliot Spitzer’s tenure as attorney general.

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Generally, in support of their motion for a preliminary injunction, Schick asserted the following three arguments.

Schick charged the governor’s executive order 1) violates the Free Exercise Clause of the First Amendment, 2) infringes on the parent-plaintiffs’ fundamental right to control the education and upbringing of their children under the substantive Due Process Clause of the Fourteenth Amendment, and 3) violates the parent-plaintiffs’ hybrid right to direct the religious education of their children.

Schick also tried to demonstrate irreparable harm was caused by the executive order based on the threatened loss of First Amendment freedoms; the balance of hardships tips in the camp owners’ and parents’ favor because the overnight camps are uniquely positioned to protect against the transmission of Covid-19, the overnight camps’ have implemented aggressive screening and prevention measures, children are much less susceptible to Covid-19 than adults, there is “low prevalence” of Covid-19, and the overnight children’s camps were closed as a result of those executive orders rather than as a result of any clarifying statements made by the governor or his representatives on June 12.

This case has turned into more than simply whether or not kids can safely attend sleepaway camp without presenting an unnecessary health burden on a rural community in the case of an outbreak of the virus. It has morphed into whether the governor has the constitutional right to issue the executive order closing down overnight camps this summer.

In his decision, Suddaby “recognizes the extenuating circumstances and the difficulty of responding to a pandemic in real-time; however, [the governor’s] position is untenable. Were the Court to adopt [the governor’s] position, the Governor of New York would be able to unilaterally issue executive orders without providing the opportunity for his or her constituents to sue to enjoin these actions.

“In other words, the Governor would be able to shield his or her executive actions from suit, without judicial review. This position conflicts with one of the foundational principles of our democracy – a system of checks and balances, regardless of circumstance.

“More specifically, legislative immunity shields an official from liability if the act in question was undertaken in the sphere of legitimate legislative activity. By nature, executive orders are not legislative. [The governor’s] executive orders do not qualify as an integral step in the legislative process; in fact, they avoid the legislative process altogether. Therefore, the Court finds that [the governor’s] executive orders were not an act in his legislative capacity. Accordingly, the Court finds that [the governor] is not entitled to legislative immunity under the facts of this case. Legislative immunity can apply not only to legislators, but also to officials in the executive and judicial branches when they are acting in a legislative capacity,” Suddaby wrote in his decision handed down on Monday, July 6.

But regarding Schick’s argument about the governor’s executive order trampling on religious freedom in favor of health care of children, Suddaby countered by citing two items of legal precedence.

As this matter relates to health care issues, Suddaby wrote, “the Constitution entrusts the safety and health of the people to the politically accountable officials of the individual states. When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. Chief Justice Roberts indicated that, where the broad limits are not exceeded, they should not be subject to second guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to people. When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some real or substantial relation to the public health crisis and are not beyond all question, a plain, palpable invasion of rights secured by the fundamental law. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. [The governor’s] executive orders do not, beyond all question, amount to a ‘plain, palpable invasion’ of [the parents and organizations] constitutional rights.

“The Court’s self-restraint is particularly warranted given the fact that the restrictions are based on the suppression of the virus. From the Court’s humble perspective, there appears to be more than one reasonable response to the Covid-19 virus. [The governor’s] decision to ban overnight camps (even without exception) bears a real or substantial relation to his interest in suppressing the virus. The Court will not substitute its own view of another measure it believes would have been more appropriate under the circumstances,” Suddaby opined.

Citing legal precedence from last month, Suddaby wrote, “The government need only demonstrate a rational basis for its enforcement, even if enforcement of the law incidentally burdens religious practices.” Citing another example of case law from the Central Rabbinical Congress of the United States v. New York City Department of Health & Mental Hygiene, Suddaby wrote, “A law burdening religious conduct that is not both neutral and generally applicable, however, is subject to strict scrutiny.”

The judge later on in his ruling, wrote the Court finds that [Schick] has sufficiently demonstrated irreparable harm and cited case law that states, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Where a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed.”

The judge also seized on a key omission from Schick in his arguments. Schick “provided no factual allegations or evidence to indicate that the fact that only Jewish overnight camps have continued to plan to open for the summer leads to the conclusion that [governor’s] executive orders have targeted the Jewish faith. To the contrary, it is undisputed that [the governor’s] ban on overnight camps applies equally to all such camps, regardless of the camp’s religious (or secular) nature. The fact that [the AJCO and parents] have maintained a hope and willingness to operate or send their children to overnight camps this summer longer than most persons involved with secular or non-Jewish overnight camps does not somehow turn [the governor’s] facially neutral executive order into impermissible targeting.”

The judge flat out rejected Schick’s argument that overnight camps provide similar sleeping and eating arrangements to those provided by colleges and universities.

“[Schick] fail[ed] to elaborate on how they will ensure that the individual campers and staff will enforce social distancing protocols among the individuals in their sleeping quarters, or how communal areas such as bathrooms and dining facilities will implement the appropriate safety measures. During oral argument, [Schick] conceded that several of the overnight camps utilize cabins for housing and could have anywhere from eight to twelve individuals sharing an enclosed space. The Court notes that cabins traditionally consist of one large room that can accommodate a large group of people who share a living space while higher education dormitories range in size and space and typically consist of a large building with numerous separate rooms that individually accommodate a smaller number of people than do cabins. Also traditionally, dormitories hold one to four people per room, and depending on the dormitory, can even have separate bathrooms for each individual. Although [Schick] acknowledged that the number of campers assigned to a cabin may have to be smaller to abide by social distancing practices, the Court concludes that the overnight camps’ cabins are not comparable to higher education dormitories.”

Reacting to the argument that day camps and child care facilities are more harmful than overnight camps, Suddaby took Schick to task.

“[Children in day camps] congregate for just one meal a day, as compared to overnight camps where campers traditionally congregate for three meals a day and then congregate again (this time with a smaller group) for approximately eight hours in an enclosed area, usually for weeks on end. By nature, day camps and childcare facilities provide less opportunity for the transmission of the Covid-19 virus simply because the individual attendees spend significantly less time with their fellow campers as compared to overnight camps,” Suddaby wrote.

As one of the main arguments, Suddaby was not in favor of the transfer of campers from areas with a high level of Covid-19 cases to an area with a low incident of cases and from an area with better health care services to a more meager health system.

“In Sullivan County, located in the Catskills region of New York State, [the governor] estimates that approximately sixty-two percent of the Jewish overnight camps are located. In total, Sullivan County has approximately 169 licensed beds, thirteen intensive-care-unit beds, and fifteen certified beds that can provide both acute and subacute rehabilitation services. At oral argument, [Schick] explained that in a usual summer, approximately forty-two thousand campers attended approximately fifty to sixty Jewish overnight camps located in New York state. Although a significant drop off in these numbers is expected due to a truncated summer and concerns over the Covid-19 virus, should an outbreak occur at the camps, the situation could overrun the hospitals within Sullivan County and require hundreds of individual children to be quarantined at the individual camps, potentially hundreds of miles away from their families,” Suddaby noted.

“[Schick] failed to provide factual allegations or evidence regarding how they could avoid this scenario. Due to the general remoteness of overnight camps, a sudden outbreak would put great strain on healthcare infrastructure and resources of smaller rural hospitals, which have significantly fewer ICU beds as compared to more urban areas. Overall, the Court is unpersuaded that day camps pose a similar or greater risk than do overnight camps. As a result, the Court finds that none of the specific explicit exemptions that Plaintiff mentions are sufficiently comparable to permitting an overnight camp for the purposes of a general-applicability analysis.

“Encouraging travel from more densely populated areas throughout New York state that have been more heavily impacted by the Covid-19 virus and from several neighboring states has the potential to catastrophically eliminate the progress New York state has made to date in limiting the transmission of the Covid-19 virus and to create ‘hot spots’ in areas where the overall level of the virus has been relatively low. At this time, the Court finds that granting overnight summer camps to open runs contrary to the public interest in stopping the spread of the Covid-19 virus,” he concluded.

During last week’s oral argument, Schick maintained that there was an inconsistent exemption made for protestors of the George Floyd murder by people who congregated in theater, museum lobbies and on the street because the governor did not want to disrupt their constitutional rights. However, Schick said the same measure should be taken with overnight camps, to which Suddaby wrote Schick confused the situation.

“Simply stated, the Court finds that permitting children to sleep in groups in enclosed spaces for eight hours per day in overnight camps is not sufficiently comparable to permitting conscious adults to shelter for shorter periods of time inside theater and museum lobbies during mass protests.”

The judge also took Schick to task over the Free Exercise Clause.

“[The governor’s] interest in preventing the spread of Covid-19 is a legitimate interest, and that interest is rationally related to the prohibition on overnight camps: it is entirely legitimate to send campers home at night because the alternative (letting them stay overnight) does not sufficiently ensure (a) that the campers will indeed self-quarantine for two weeks after a negative test (setting aside the fallibility of the tests), or (b) that campers and staff do not violate quarantine protocols while at camp,” according to Suddaby.

“Accordingly, for all of these reasons, the Court finds that [the camp operators and parents] have failed to show that they are likely to succeed on the merits of their Free Exercise Clause claim,” he wrote.

“Because [the governor’s] executive orders were neutral and generally applicable, and in the alternative, were narrowly tailored to address a compelling government interest, the Court also concluded that the parent-plaintiffs’ fundamental right to control the education and upbringing of their children was not violated by [the governor’s] executive orders because [the governor] did not arbitrarily interfere with parent-plaintiffs’ ability to control the education and upbringing of their children. Having already evaluated and found that each individual claim would fail under rational basis test [Schick] failed to show that they will likely succeed on their ‘hybrid’ claim.

“[Schick argues] that the balance of hardships favors Jewish overnight camps because they will implement rigorous health and safety protocols that will safeguard campers and staff from the Covid-19 virus through regular screening and subjecting symptomatic individuals to immediate testing. However,” Suddaby concluded, “testing is fallible and cited a Johns Hopkins study that found that testing people for the Covid-19 virus too early in the course of infection is likely to result in a false negative test, even though the individual may eventually test positive for the Covid-19 virus. Given the unprecedented nature of the Covid-19 pandemic, the deadly nature of the virus itself, the lack of a vaccine at the time of this writing, and lack of scientific agreement about its transmission, the Court concludes that the issuance of an injunction [to open camps] is not in the public interest at this time.”

Assemblyman Simcha Eichenstein (D – Boro Park, Midwood) said he was disappointed by the decision and frustrated with the Cuomo administration policy makers. He said he has no qualms about sending his teenage daughter to overnight camp despite the potential health risks.

“It’s unfortunate that children will not now have an educational structure over the next six to eight weeks,” Eichenstein, 36, told The Jewish Press. My frustration is with the policy makers we have been engaging with over the past three months. We were clear from day one that there are serious safety guidance that need to be implemented. I would never advocate to endanger anyone’s life. We came up with an impressive 19-page document outlining all the safety measures that would be put in place.

“When I advocated for this (opening overnight summer camps) and leading the fight for this, bringing everyone together and making the case to the governor’s office and the department of health, I didn’t just do it on behalf of the tens of thousands of children who send their children to sleepaway camp. I actually did it as a father as well.

“My daughter turned 13 five weeks ago. This was going to be her first year at sleepaway camp. Because this was her first year we were going to send her for one half a term. She was going to try it out for the first time so we didn’t want to overdo it,” he said.

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