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.