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Lessons From Beren’s Legal Challenge

Lessons From Beren’s Legal Challenge

On the morning of Feb. 28, Alyza Lewin of the law firm, Lewin & Lewin, invited me to participate in a conference call to discuss a burgeoning controversy involving the basketball team of the Robert M. Beren Academy, an Orthodox day school in Houston. 

Alyza and her father, the venerated constitutional lawyer, Nathan Lewin, had been informed the preceding evening by Etan Mirwis, whose son is the Beren team captain, that Beren was on the verge of forfeiting eligibility for a Texas state championship slotted to be played over the upcoming Shabbat. 

In 2009, I had enlisted the Lewins’ help to secure a scheduling accommodation for members of the mock trial team at the Maimonides School of Brookline, Mass., to participate in the National High School Mock Trial Championship. The Beren situation would mirror the Maimonides’ experience in many ways, with the Lewins ultimately instituting legal action that enabled the Beren basketball players to be accommodated.

Many are proud that Beren competed, but the school publicly declared opposition to the legal action. In 2009, Maimonides was also against a legal challenge. Both schools thought it inappropriate to pursue a forceful response, preferring only to make respectful requests but not to demand an accommodation.  Both schools recognized that, without the legal option, the students would not participate because the associations administering the competitions would not alter schedules — even minimally — unless ordered to do so. The schools were, nonetheless, content, proud that their students had been taught to sacrifice for a worthy principle. Although the students had worked hard and rightfully deserved to compete, the schools reasoned that forfeiting was a noble act of Kiddush Hashem, accentuating that nothing — certainly not a game or competition — should compromise Shabbat.

In both situations, however, the parents spearheading the accommodation campaigns focused as well on an additional value.  Like Mirwis’ tireless efforts at galvanizing support for Beren, it was the father of the Maimonides’ team captain, Dr. Jeffrey Kosowsky, who spent countless hours energizing interest in the Maimonides story. Both Mirwis and Kosowsky, successful graduates of well-regarded Modern Orthodox schools, deemed it imperative not just that the students appreciate Shabbat’s sanctity but that they internalize the lesson of inclusiveness fundamental to this country’s purpose.

Mirwis and Kosowsky appreciated that others outside the Jewish community had been affected by the discriminatory policies and that change would be effected only through a forceful challenge.  The mock trial controversy was a multi-year battle resulting in states, including New Jersey and North Carolina, withdrawing from the national competition precisely because the national organization formally voted not to accommodate Saturday Sabbath observance. Consequently, for a number of years, no school in those states — Jewish or otherwise — could compete in the national championship. 

Because of the Lewin & Lewin legal strategy, not only did Maimonides compete, but the National High School Mock Trial Championship (NHSMTC) organization ultimately reversed its policy to allow for scheduling changes and New Jersey and North Carolina re-joined the competition.

Likewise, it was not just Beren or Jewish schools that were harmed by the intractable no-accommodation stance of the Texas Association of Private and Parochial Schools (TAPPS). The Burton Academy, a Seventh Day Adventist School, was excluded from competing in the TAPPS basketball championship three times because of Saturday Sabbath observance. The former Burton players and coaches remained disappointed, wondering what could have been had they been able to compete. They encouraged Beren to challenge TAPPS and were even willing to join a lawsuit.

Etan Mirwis would celebrate Beren’s semifinal win in the TAPPS championship while sitting together with new friends from the Burton Academy. And it is Etan Mirwis who is most eager to help TAPPS in the future adopt an accommodation policy. TAPPS has, in fact, now issued a statement, seeking such assistance and acknowledging that: “[o]ur state is becoming more diverse.  Because of that, we are reaching out to leaders around the state.  We want to listen to hear their concerns, and most of all to hear their ideas.” 

While Beren, Maimonides and other Modern Orthodox schools are right in emphasizing to students that religious observance necessarily involves sacrifice, we may be doing our children a disservice if we do not responsibly challenge discriminatory behavior that only we have the opportunity to fix. In both the Beren and Maimonides cases, there was no compelling reason for NHSMTC and TAPPS not to accommodate, and the accommodations did not affect the competition or other contestants. Indeed, in both cases, other teams were amenable to the accommodations. Our children must appreciate that they are fully a part of an inclusive society, one which values their contributions and skills and which needs them to speak up when an imperfection must be rectified. It is not being pushy or unbecoming to demand that this great country benefit from the wisdom and talents of all its citizens; it is a civic duty to press the case.

In the early morning hours of Feb. 29, as Beren resigned itself to forfeiting its rightful place in the TAPPS championship, I sent an e-mail to a friend, who is also a leading Beren administrator, encouraging the school to accept the Lewins’ guidance. I wrote that sometimes legal proceedings are necessary because sometimes they right a wrong.” I added that “if you do not challenge, you teach [your students] that they are not fully American and do not have the same rights as other citizens.  That would be a tragedy.”

In the end, the legal victory helped the Beren basketball players, some who are likely to become leaders in our community, savor the blessings of living in a country that wants them to realize their promise and potential while staying true to their personal religious beliefs.

Daniel D. Edelman is a lawyer in New York City.

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