Sunday, June 20, 2010

I've stopped posting because I came to the conclusion that there was no purpose in one more person saying what many others are saying, even if many more are saying the opposite. I mean, if I railed that our Defense Minister has Asperger's or that American Jews are all Orthodox but some are Orthodox Jews and others are Orthodox Democrats, would I be saying anything that Powerline or the Commentary blog or Caroline Glick weren't saying already?

But the High Court's decision in the Emanuel case and particularly the jailing of the parents has generated so much heat and so little light that I have an irresistible urge to weigh in.

First, the facts. The Beis Yakov in Emanuel split into two tracks. One of these, the so-called "Chasiddish" track, initially established a set of criteria for admission that included various chumrot, but also that students daven in havara Ashkenazes. The Education Ministry ruled that they could not use the havara Ashkenazes rule as a basis for admission and they dropped it. When the dust settled, 25% of the students in the chasiddish track were Sefaradim and 25% of the students in the non-chasiddish track were Ashkenazim.

A petition was brought by an NGO called Noar Kehalacha and an activist named Yoav Lalom against the Education Ministry contending that the separation of the school into two schools, one predominantly Sefardi and the other predominantly Ashkenazi, was a violation of minimal non-discrimination standards necessary to permit government funding of the school.

The court ruled in favor of the petitioners. The court recognized that differences in customs between Ashkenazim and Sefardim justified separate classes for studying "dinim" or for davening, but argued that no separation is justified for other classes. In particular, the point of contention was that the chasiddishe parents wished to prevent fraternizing between the two groups, a wish that is precisely what the court was determined not to allow.

In order to understand the terms of the disagreement, it is important to recognize that all communities need to resolve tension between two types of moral principles. One of them is more universal and involves recognizing the rights of others, while the other is more particularistic and involves establishing special bonds within the community. This latter involves "signaling" behavior, in which members of the community do apparently costly and useless things simply to signal to each other that they are reliable colleagues. One wears just the right sort of hat and frock (or jeans and earring), eats the approved foods, and so on. The more tight-knit and insular the community, the more costly and bizarre the signals and hence the more exclusionary.

Those who seek fellowship and identity in more loosely-defined communities find the signaling behavior of those in more narrowly-defined communities to be bizarre, wasteful and needlessly exclusionary. It's important to note, though, that most people see those to the "right" of them in that light, while they themselves are seen in precisely that light by those to the left of them.

As a result, judges (and Modern Orthodox Jews and pretty much everybody else) whose notions of community are considerably looser than the Slonimer chassidim in Emanuel, will have a hard time convincing themselves that to Slonimers this sort of signaling behavior is actually substantive and not merely bigotry. To most people, including me, the cost of certain exclusionary signals vastly outweighs the benefits. But Slonimers have a different calculus.

In any case, it is perfectly legitimate for the government to decide that it wishes to discourage this sort of exclusionary behavior and that it will not fund schools which encourage it. Perhaps the judges understood the law in that sense, in which case I can understand that they'd rule that the government must cease funding the school.

In fact, though, the judges ruled that the school must be integrated back into a single unit. It is unclear whether the point is that they are opposed to segregation of this sort even in a non-funded school or if, as a technical matter, the school was already government-funded and hence needed to integrate so long as that remained the case.

So far, the issue is debatable but within reason. Here is where it gets flat out insane. Parents in the chassidish track pulled their kids from the school. It seems obvious to me that the choice of which school to send their children to (or not to send their children to) is one of the most fundamental rights parents can have. We might regard such a choice in any particular case, such as this one, as misguided or even venal, but it remains a right, nonetheless. (The alternatives that the parents found in this case were not officially recognized, a technical point the relevance of which to the main issue here seems rather limited.)

Nevertheless, the court somehow came to the conclusion that the parents decision to pull their kids from the school constitutes contempt of court.

Now it should be pointed out that the parents were not respondents in this case. In fact, since this was a decision of the High Court sitting as Bagatz, it could not have had original jurisdiction in this case if not for the fact that the defendant was the government (specifically, the Ministry of Education). Perhaps if the parents had physically attempted to bar girls from the non-chassidish track from accessing the building or some such Bull Connor tactic, there would be some logic in holding them in contempt for preventing the ruling from being implemented. Such a step would, even in that case, be far-fetched given that the parents were not respondents. But in fact, the parents did not prevent the girls in the non-chassidish track from doing anything at all; they did nothing more than exercise their right to take their kids out of the school. I wouldn't give them a medal for that behavior, but I can't see any reasonable grounds for holding them in contempt either.

In short, the court's decision to imprison the parents is without any legal basis. Since the court can't very well insist that all the girls show up for school tomorrow (that's a matter for the truant officer, not the High Court of the land), the court insists instead that the parents declare in writing that they accept the court's ruling in principle. In plain English, the court is pissed off that the Slonimers are insufficiently abject and it intends to show them who's boss.

In fact, we will soon find out who is boss and, whoever it is, most of us will wish we were unemployed.

Note: Some terminological issues clarified Monday 11:00 AM thanks to comment by Anonymous.