Thursday, September 03, 2009

Jewish Schmucks Have Rights Too

I once read a story about Germany's remaining Jewish community in, I want to say, the late 1990s. Apparently, for whatever reason what few Jews remained in Germany were highly concentrated in certain ... less savory businesses (alcohol, nightclubs, strip clubs, etc.). A German citizen, while saying that anti-Semitism is always unjustified, asked why they had to go and make it hard on themselves by working in those professions. But of course, the answer is that no group is truly free unless some of its members are allowed to be schmucks.

Eugene Volokh points me to a recent decision handed down in New York, Incantalupo v. Lawrence Union Free School Dist. (E.D.N.Y. Aug. 24, 2009), rejecting an Establishment Clause challenge to actions taken by the local school board, a majority of which was Orthodox Jewish. Apparently, the school district experienced an influx of Orthodox Jews moving in, most of whom didn't send their kids to public schools (instead sending them to private Yeshivas). Not sending their kids to public schools, they did not want to pay the high taxes supporting Lawrence's previously excellent educational programs. So they mobilized to get taxes slashed, and eventually managed to win enough school board seats to cut programs further. The local community members who did have kids in public schools were, understandably, displeased. So they launched a suit alleging that board's action were an Establishment Clause violation because, they claimed, the board's tax cuts and spending slashes were motivated by a desire to transfer resources to the private, parochial Orthodox schools (by freeing up money that was being spent on taxes).

Like Volokh, I think the court was right to throw out the suit. And the judge's somewhat intemperate tone towards the plaintiffs was also warranted, as the lawsuit made a great many assumptions about the Orthodox Jewish community that were false, biased, prejudiced, or worse. As Judge Seybert said, it is not a valid legal argument to assert that Orthodox Jews are effectively "robots" under the control of their Rabbis. The complaint had a strongly conspiratorial tone that the Judge was right to take note of and reject, stridently.

That being said, I find the case interesting, for two reason. First, how it interacts with Board of Education of Kiryas Joel v. Grumet, 512 U.S. 687 (1994), which dealt with (I think) very similar issues and came to an opposite conclusion. And second, I find this case interesting because the Orthodox Jews who were engaging in these political moves were, to not put a fine point on it, acting like dicks.

Let's take them in turn. I've written about Kiryas Joel and what it says about the prospect of Jewish political power at reasonable length, and so this case immediately raised a flag as well. The Incantalupo opinion, in my somewhat quick readthrough, does not mention Kiryas Joel once, which to my mind is an inexcusable omission, either by the judge, her clerks, or (especially) the plaintiff's attorney, who should have thrown it at the judges head. The judge in this case basically called the complaint frivolous -- Kiryas Joel, to my mind, makes this case actually a very close call.

Kiryas Joel, as I read it, stands for the proposition that even the facially secular provision of secular benefits nonetheless can arouse Establishment Clause concerns where they seem too tied to the desires of a sectarian religion community. I think that's an extremely dangerous precedent, which is why I think it is wrong and this decision is right, but lower courts shouldn't get in the habit of calling suits which are clear extensions of Supreme Court decisions nonsense. In Kiryas Joel, the court struck down the establishment of a secular school district to track the borders of a religious community (the village of Kiryas Joel), because it might appear as if the Satmar Hasidic control of the school board would lead to pervasive sectarianism. There is an argument that the behavior at here is in fact worse than what occurred in Kiryas. For the most part, the allegations in Kiryas Joel were speculative -- about what decisions the board might take or the appearance they might have. Here, by contrast, the plaintiffs had very specific and concrete decisions made by the board which, while facially neutral, they alleged were in fact motivated by and had the effect of endorsing religious concerns.

The court's response to this, quite wise I think, was that applying this standard would effectively eviscerate Orthodox Jews' ability to participate in democratic politics. Everybody else can seek lower taxes in their communities because they'd rather spend their money elsewhere (on foreign charity donations, on yachts, on booze), and run for office on that pledge. Only Jews are disabled from this sort of democratic participation (if they want to spend the money on Yeshivas), because that would be an Establishment Clause violation. This would have the effect of constitutionalizing Jewish political impotence, which is pure discrimination. Jews, like everybody else, are allowed to pursue political goals, even if those goals are related to religious interests, so long as the government itself isn't establishing the religion. Lowering taxes doesn't breach that wall (nor, in my opinion, does running a secular school district).

The second point though, is that I think the Jews here were being assholes. I am a strong advocate of public schools. I think supporting the public school system is a social obligation we all share as members of a community, whether we have children in the system or not. I think states and localities have a political and moral obligation to provide children with free and superb public education, and that this obligation trumps the provincial desires of various private interests. Gutting a public school system -- for whatever reason -- is to my mind a grievous ethical sin, the sort that we should speak out against in general, and particularly when it is being orchestrated by a fellow member of my community. As a Jew and as a citizen, then, I find the behavior of the Orthodox Jewish community in Lawrence -- mobilizing to try and destroy the local schools to benefit their own private interests -- despicable.

But Orthodox Jews are hardly the only ones to make selfish choices. There are many school districts, nationwide, where a large and politically mobilized senior community effectively manages to block needed funding and bond issues because, hey, what do they care about schools? And that, to my mind, is democratically irresponsible and immoral behavior. California is effectively barred from raising taxes, period, putting who knows how many social programs in shambles, due to this private "I've got mine" mentality. And that's wrong too.

Jews have the same right to be jerks as seniors or Californian anti-tax zealots. There is no politics of respectability here -- I won't abandon the rights of the Jewish community simply because they're using them in anti-social ways. That's takes away the entire point of having a right.

But they're still jerks. And we should say so.


PG said...

The decision is very interesting. There are indications that the plaintiff's filings were blatantly (and irrelevantly) anti-Semitic, harping on the Orthodox Jews' having different "wardrobes" and "grooming habits."

There also is a point that you omitted from your post, which is that the Orthodox Jews elected to the school board campaigned not only a platform of lower taxes, but also of increased services for private school students. The district already was spending $7mil a year to bus K-12 students to parochial schools; this would increase the spending even further in order to cover pre-K parochial school students. According to the plaintiff (the only side we get in a motion for summary judgment), the rules for this busing were written in such a way as to include all yeshiva students while excluding other private schools, leading to the State of NY overturning the busing scheme and Lawrence losing an Art. 78 petition to reinstate it.

This seems to me, as you said, to put the mere concerns expressed in Kiryas Joel into real, concrete action. I do think creating benefits on a religiously discriminatory basis is different from reducing everyone's taxes across the board. I think it is a possible 1st Amendment violation to run purportedly public, tax-based entities like school districts essentially for the benefit of people belonging to a particular religion.

Unfortunately, because the plaintiffs are stupid (and probably anti-Semitic), instead of either bringing suit back when the busing plan was drawn up, or waiting to bring suit to see whether School #6 was sold on favorable terms to a yeshiva, or if subsidies were given to the Orthodox special-ed school, they decide to base their complaint on a general tax reduction/ school gutting plan that has no facial bias in favor of any religious group.

Superdestroyer said...

This sounds like what the Fundamental LDS were going on the Utah/Arizona border. An ethnic group uses in-group strategies to take over local government and then runs local government to benefit itself and stick others with the bills.

As the U.S. becomes more diverse, there will probably be more of this. An good example is rural, all Hispanic counties in Texas, New Mexico, Colorado running the local government as a jobs program for the extended families of the area.

chingona said...

I, too, immediately thought of the Fundamentalist LDS in Colorado City. I believe the local government and school board were taken over from the outside and forcibly disbanded because they had become an extension of Warren Jeffs' enterprise. But they used the standard, legal mechanisms to fill the council and board with loyal Jeffs' supporters. No one else would have been able to win election.

As the U.S. becomes more diverse, there will probably be more of this. An good example is rural, all Hispanic counties in Texas, New Mexico, Colorado running the local government as a jobs program for the extended families of the area.

I think this sort of thing happens in areas that are homogeneous, not in areas that are diverse. And it's been going on a long time in small towns of all races and creeds.

PG said...

Diversity is what creates the challenges to such behavior: e.g., when Mormons and Catholics challenge majority Protestants' use of the public schools and their activities to discriminate against Mormon and Catholic beliefs.

As usual, superdestroyer actually means that the default is WASPs, and when an "ethnic" group gains a numerical majority in a single area, that group must be using in-group strategies to stick others with the bills. When WASPs had mandatory Protestant prayers in taxpayer-funded schools (which is what caused Catholic schools to be widely established in the first place), that's just normal.

Superdestroyer said...


Diversity makes in-group actions easier since there are so many other in-groups, people just will not care. Look at how Korean dominate the dry cleaning industry in many cities. In Fairfax Virginia they have gotten the rules changed to make it much harder to non-Korean competitors to start up. since the in-group will care more that any gorup of outsiders, the in-group shows up to the meetings and petitions the government.

In the future, diversity will create many more ethnic based special interest groups that will be better organized and more motived than the population as a whole.

PG said...

In Fairfax Virginia they have gotten the rules changed to make it much harder to non-Korean competitors to start up.

Really? The rules say non-Koreans can't run small dry-cleaning businesses? Or that they have to do something that Koreans don't have to do?

Superdestroyer said...


In Fairfax Virginia, Korean Dry Cleaners association have used building and environmental laws to force competitors out of business


Marc Fisher: I've had a huge reaction to that column on DryClean Depot and their more expensive and very upset competitors, the Koreans who own more than 90 percent of the dry cleaners in northern Virginia.

In the future, it will become easier for ethnic groups to band together to support each other. See Vietnamese nails salons, Korean Cleaners, etc.

David Schraub said...

As is nearly always the case, SD's link bears virtually no relation to the proposition he's citing it for.

Superdestroyer said...


all of the washington post articles are in the pay to read archives.

If you google Dryclean Depot falls church korean you will see the first few lines of the articles. The Norhtern Virginia Korean Dry Cleaners association pushed to limit the size of dry cleaners so that large, commercial size dry cleaners could not open in northern Virginia. This gave a huge advantage to family run, small Korean owned dry cleaners who could cheat on taxes and regulations to prosper. The association would file complaints about any non-Korean run cleaners.

It is a good example of in-group behavior that diversity allows to happen.