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.

22 Comments:

Anonymous Big Maube said...

Is there no recourse? What can be done to hold the High Court accountable for their gross overreach?

3:03 AM  
Anonymous Anonymous said...

I hope you're not leaving the blog-sphere for good!

Your Passover at the Kinar post was one of my favorite all time blog posts anywhere (topped only by the funniest blog post in history, http://modernorthoprax.blogspot.com/2009/12/hagaon-reb-leib-tropper-no-to-big-bang.html)

--baalabus

5:34 AM  
Anonymous Ima2seven said...

Thank you for the best explanation of this case that I have been able to find so far.

What I love most is how you have articulated the salient point here: the court has acted in such a way as to force the school to behave in certain ways, rather than deny the school government funding. In that move, the court turned itself into the bad guy here, in my opinion. This was a statist move, and precisely the opposite of the kinds of freedoms Israel needs in order to move forward.

5:45 AM  
Blogger Nachum said...

Oh, come one. You dismiss as marginal the two major legal issues. As someone who always looks at things from the legal perspective, you should know better:

"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."

That's probably the single most important issue.

"t 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)"

So, in other words, it *did* have jurisdiction. Full stop.

9:17 AM  
Anonymous Anonymous said...

First of all, I hope you do continue to post. You are a valuable voice in the wilderness. As a fellow heimische yid turned zionist traveler I appreciate your commentary - which can't be found elsewhere.

You misuse a few terms. Ther are no plaitiffs and defendants and it is not a (law)suit. There are petitioners and respondents and it is a petition for relief against a public/state organ. this is very important in order to REALLY understand what happened (and the injustice of it all).
In these types of petitions private citizens are never respondents. This is ABC of HCJ/Administrative Court procedure, and every single newly minted lawyer knows about these trick questions on the bar exam which have citizens as defendants on administrative law petitions.

What the court did here is that they rejected the request to have the parents establish a privately funded school which would not accept a shekel of state funding but would be sufficient to keep the truant officer at bay (e.g. like the Satmar schools). It is important to note that this week many public commentators have had full op-ed pieces the gist of which is that in order to "get" the Charedim and give them what they deserve, the State should stop funding the schools. They simply ignore the fact that the HCJ rejected this option.

However, in order to effect the decision vis-a-vis the parents, the HCJ, relying a vague precedent decision did indeed allow the amendment of the petition to include the parents as respondents. [Nahum - while the court did have original jurisdiction, it simply had no jurisdiction to attach the parents as respondents. They will be studying - and crticizing - this ruling for years to come in the faculties of law]

When all the dust has settled, everyone will realize that the above noted was indeed the great reach and stretch of the court. IIUC even the IDI has crticized this move, and that even the all-powerful HCJ with its notions of inherent or sunken authorities, really has no grounds for attaching private citizens as respondents in a petition for justice against a State organ (certainly absent the "Bull Connor" methodology) - there is simply no basis for this in the procedural regulations of the HCJ/Administrative Courts.

This is very important. While the HCJ sets precedent, the way these precendents are applied to private entities would usually be through the regular civil courts, under normal court proceeedings with gathering of evidence. E.g. if you wanted to sue a nightclub for discriminatory entrance policies - based on HCJ precedents with respect to non-discrimination in public places - you would still have to do this in the regular civil court subject to some standard of burden of proof. With this decision you would now be able to bring a petition against the nightclub just by including the police for not enforcing anti-discrimination laws and the HCJ would hear the case. But there are no rules of evidence and almost no hearing of witnesses in HCJ petitions. This will make a mockery out of the civil legal system.

10:53 AM  
Blogger Ben said...

Thanks, Anonymous, for your, as always, sage comment. I've revised the terminology accordingly.

11:10 AM  
Anonymous Anonymous said...

awesome post -- please dont stop!
also, can you clarify your last sentence before the note at the end?

12:31 PM  
Anonymous Anonymous said...

Please don't stop blogging! Your posts are always insightful and worthwhile.

12:37 PM  
Anonymous Anonymous said...

Ben - you're welcome.

Here is the relevant decision which really kicked off the whole ruckus.
http://elyon1.court.gov.il/files/08/670/010/k39/08010670.k39.pdf

from sections 17 and onwards with respect to non-litigants being liable for contempt

The HCJ itself made reference to Brown v. Board (and co.).
I don't think that any jurist in his/her right mind would argue that Bull Conor - or even the KKK - doesn't have the right to set up a privately funded school (or to "home school") their kids on some compound.
Like I wrote - these passges will be studied - and critiqued - for years to come. My guess is that when the dust settles, even Aviad HaCohen will admit that the court went to far. He kind of hemmed and hawed this week and sort of admitted it - but he'll come around

1:52 PM  
Blogger Ben said...

You are a very generous judge of character. I'm quite sure that Aviad will kiss their asses until they let him into the club. Aside from self-interest, it's in his genes.

2:04 PM  
Anonymous Anonymous said...

Ben, long time reader, first time commenter. It's true that one can read similar analyses in other venues, but never quite with the same cynical bite. I, for one, would miss your unique voice.

6:58 PM  
Anonymous Terry said...

Ouch.

Wow, now I'm terrified of my status as a proud Orthodox Democrat. If I ever merit being more than insignificant and unworthy, I hereby apologize for everything I've ever done to offend you (even if I view your US political views as Neanderthal).

If my apology is insufficient, allow me, I beckon, to offer chanifa: I have been looking at your blog to obtain your views on this for over a week.

I accept your conclusion of HCJ over-reaching but you failed to provide your signature realpolitik analysis to the Slonimer end-game here: Except for litigation purposes, they're not really abandoning either (i) State funding, or (ii) control of the school building - are they?

7:34 PM  
Anonymous moshe shmeal said...

i will only say that the malbim has responded to you and your ilk long long long ago, i hope you grow up.at what age is being an "ipcha mistabra " not fun anymore.whatever the age you proved it wrong. you should get a gold medal for that

3:21 AM  
Anonymous Y. Ben-David said...

Add my vote for you to continue to post. With the ongoing crisis in Israel that began with a vengeance with the Oslo Agreements it is easy to fall into depression and a feeling of isolation over our feelings of anguish caused by current events (e.g. Netanyahu's agreement to end the blockade of "civilian goods" going to Gaza) and I find it useful to see what knowledgeable people in our camp think and it really eases the feeling of "am I the only one who cares about how they are destroying the country".

I also greatly appreciated your posting about why you are a religiously observant Jew which I found closely matched my own and which are totally out of synch with the ideological extremism (anti-Slifkinism) of our time which so many religious Jews wrongly think are so vital.
So, keep it up!

12:14 PM  
Anonymous Saul said...

Please continue to blog. Your analysis & perspective always clarify an issue.

6:42 PM  
Anonymous chagai said...

Hope you close this blog.
Nobody needs you anti-hareidi nonsense.YOU ARE A REAL ' SHUNAH UPEIRUSHNIK".In fact please close this blog.
Thanks from all the clear thinking people.

2:05 AM  
Blogger Ben said...

moshe shmeal (ben usher zelig?),
read more carefully before you comment
i was supporting slonim in this post, not opposing them
you are the one who opposes them, because leshitaschem, they shouldn't be taking state money in the first place

9:05 AM  
Anonymous Shmuel said...

That was very well thought-out. Thank you.

Both you and the Supreme Court give the charedim too much credit on one minor but important point: "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..."

Nonsense (in "dinim" class). Both can be taught with mutually respect side-by-side in the same class, with the net result being that both are ultimate better understood through comparison and contrast. This has been the reality in dati-leumi schools for decades already, and it is a beautiful thing.

The fact that this method is inconceivable to the charedim also hints at the wrongful separationism and built-in racism.

12:51 PM  
Anonymous moshe shmeal said...

listen its not hard to see that you are not an admirer of slonim in any way.yes , you support them but only after explaining them in a "very friendly way".i however know that even though i oppose some of their things , i am open minded enough to respect our " chilukei dayos"(as opposed to some who believe that only they have it and anyone opposing them has it wrong - see "The Demise of Self-Negating Religious Zionism" where the auther claims that those who quote the gemara on 111 did out of negias cause the auther "knows" that there just isnt a way other than his and those who disagree have it wrong"- i know its a little off topic but farvoos nisht)

2:58 AM  
Anonymous Anonymous said...

in typical ifcha mistabra fashion, you cheppe zich un davka when someone agrees with you
fyi, to say that somebody takes a position not mainly on the basis of the gemara but misvara is not to say they have negias
al hageula ve-al hetmura is as much misvara as from shalosh shvuos

4:29 PM  
Anonymous Anonymous said...

Will you please post (or write something elsewhere) on Rav Amital?

And, can you include the broken toilet story?

6:49 PM  
Blogger Ben said...

i intend to post on rya when i get back from prague
in fact, i was contemplating whether to mention the amazing broken toilet incident
i think i won't

11:52 AM  

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