Camps Go to Court

An interview with attorney Avi Schick on the legal battle to open sleepaway camps in New York State.

After two months of appeals that New York State should allow overnight summer camps to operate as COVID restrictions are gradually relaxed, thousands of families were sorely disappointed by Governor Andrew Cuomo’s last-minute answer of “no.”

Many camps have moved out of state or adapted, using methods that allow them to function as other types of entities, and others have cancelled.

Determined to open, but facing hurdles entailed by the some of the creative approaches pursued, many other camps are pinning their hopes on a lawsuit that has been filed by the major association of Orthodox camps and several parents, appealing to the state’s justice system to reverse the governor’s decision.

With less than a week to go before most camps would normally open, many children and parents look with eager eyes to the outcome. Given the slow pace at which the wheels of justice often turn, attorneys have entered an emergency request for a Temporary Restraining Order (TRO), which would void the ban on overnight camps for the duration of the case — likely until after the summer.

Hamodia spoke with attorney Avi Schick, who is representing the camps and parents about this unique case.

As you know, parents and children are eagerly waiting to hear how the case is progressing. Please give us an idea of the probable timetable and when the TRO will likely be ruled upon?

We are hoping for a hearing some time within a week. Our lawsuit was filed last Thursday, and the TRO papers were put in today [Monday, June 22]. Now it is up to the judge to set the schedule.

I wish I could predict the timetable, but there is no real standard. On the one hand, judges need time to be thoughtful, especially when they are being asked to overturn the governor’s order, but they also understand the need to move quickly in a case such as this.

It should be evident that it was not the camps that waited until the last minute to file a lawsuit and created an emergency situation. It was the state that decided to announce its decision late in the day on Friday, June 12. Had that announcement been made earlier, camps and parents would have had more time to make alternative plans, and any legal action pursued could have unfolded at a more typical pace.

As it was, we didn’t waste a minute. We were retained late last Monday night to prepare a lawsuit to prevent the closure of camps. We filed the Complaint a few days later, on Thursday, and the full set of documents seeking a TRO a few days after that. All in less than a week. We acted as swiftly as possible, and we hope that the judge realizes that any time pressure is a result of the state’s actions, not ours.

What is the thrust of your legal argument?

At the beginning of the COVID crisis, the governor issued a set of orders aimed at slowing the virus’ spread that essentially locked down the state and prohibited a long list of activities. As time went on and the curve flattened, the administration began to make exceptions, which can basically be broken down into two categories.

The first are the recent spate of protests that the government has chosen to permit, despite the health risks and lack of social distancing. Governor Cuomo and Mayor de Blasio have been publicly supportive of the protests. They have been quite explicit in saying that the protests were an expression of First Amendment rights, and that the exercise of those rights trumps the executive orders that prohibit such mass gatherings.

We are arguing that what is good for one First Amendment right is good for another, in this case the religious education of children in overnight camp settings.

We are all in favor of robust protections for the First Amendment, but in this case a double standard was applied, a permissive one for protesters and a strict one for religious behavior.

The other activities that have been gradually allowed as the virus receded are things like child care and summer day camps, that have a similar, and likely greater, level of risk than overnight camps. These services are governed by certain protocols designed by doctors and public health experts, and our camps worked closely with doctors to do the same for overnight camps.

We argue that it doesn’t make sense to permit kids to go to day camp and then return to their families each night and to reject sleepaway camps where children are essentially in a protective bubble, especially this year, where camps would not be engaging in any off-grounds trips. The fact that the same treatment was not extended to overnight camps points to a decision that was not made based on the level of health risk.

The government’s actions on both sets of activities points to this unequal treatment, where the state made one set of rules for activities that it favors and another for conduct it views as less important.

While the Orthodox community is definitely deeply invested in overnight camps, Governor Cuomo’s decision applies to all camps. That being so, how is there a case to be made for religious discrimination?

Even in the best of times, Jews constitute a disproportionate percentage of overnight campers. About five percent of New York State’s school children are in Jewish schools, but Jewish overnight camps account for up to 35 percent of the total overnight camp enrollment.

This year, with very few exceptions all, or just about all, other camps threw in the towel by the time the governor made his announcement. So, when the decision to ban overnight camps was made, it was a decision to ban Jewish overnight camps. The law is very clear that just because you phrase something in a neutral way, that does not automatically make it neutral.

The United States Supreme Court has made it clear that a law is not neutral toward religion where the state provides exemption for secular conduct but not for religious conduct. What matters is not whether the law is drafted to appear facially neutral toward religion but the “effect of a law in its real operation.” The Supreme Court has cautioned that government cannot “decide that the governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.”

In other words, a double standard is not a neutral standard.

The community certainly places high value on the camp experience, but in the eyes of the courts, why should this be viewed as a matter of religious exercise? Children can study Torah in places besides camps upstate and, with the exception of camps aimed at outreach, the campers’ homes are also immersive religious environments. As such, how does the state’s decision impede religious exercise?

The fact that our community has made camp such an integral part of its educational program demonstrates that the premise of that question is wrong. That is especially so this year; when we haven’t had the normal face-to-face learning for the past three months, camp Shabbosos and the whole environment of camp gives kids something that is fundamental to their growth in Yiddishkeit, and that is unique to the camp experience.

The importance of camp is something that our Rabbanim and mechanchim have recognized and promoted long before this lawsuit was conceptualized. It is not the proper role of government to come along and say, “this isn’t religion” because we think you can get a similar experience elsewhere, or because other communities have non-religious camps.

The governor concedes that he made the decision to allow mass protests because he agreed with the mission and message of those demonstrations, and so therefore prioritized the First Amendment rights of assembly and speech over his restrictions on mass gatherings. The Court should rule that our community’s First Amendment rights to a religious overnight camp experience are similarly entitled to protection and prioritization.

It is a generally accepted principle of law enforcement that police have discretion as to when and how to enforce the law. Why should the decision to allow protests be any different, and why should the state’s decision affect the case you are making?

Whether or not to confront or arrest a particular violator is something typically left to law enforcement’s discretion. That is fundamentally different than the governor saying “you cannot congregate in New York” but then granting a wholesale exemption for protests advancing a particular message the governor agrees with.

To return again to the Supreme Court’s admonition, a government official cannot “exempt certain First Amendment activity he favors but not religious activity.” Doing so “devalues religious reasons by judging them to be of lesser import than nonreligious reasons.” That is impermissible.

In response to the unprecedented crisis that the COVID outbreak caused, Governor Cuomo and other public officials exercised emergency authority and took unilateral steps to try to fight the virus. How does the authority the state has been granted in this situation affect their obligation to honor some of the rights this lawsuit claims they have violated?

I think we all appreciate that the governor was given a very difficult task in March and April to deal with the tragic and horrible situation that the state was then in, and no one questioned the need for emergency authority and for someone to make decisions quickly and effectively.

But by May the governor himself acknowledged that he was willing to make exceptions for some activities, and once he reaches that stage, he can’t pick and choose based on his personal preference which activity he believes is so important that a measure of risk is acceptable, and which activity he sees no value in and therefore is subject to an outright ban.

In a broader sense, this is an issue that has been working against us for some time now. In New York and elsewhere, religion has fallen out of favor with the ruling class. As a consequence, governors, mayors and legislators have little tolerance for any religious activity that they believe poses any risk or imposes any cost.

Decision-making always involves a balancing of risk and reward, of costs and benefits. Government officials make those assessments all the time, but when religion is as disfavored as it currently is, our political leaders do not see any risk or cost that is worth incurring when the benefits or rewards are of a religious nature.

Look what happened here. Government put the potential health concerns of mass gatherings on one side of the scale, and the benefit of the George Floyd protests on the other side, and decided that the protests outweighed the risks, that the benefits are greater than the costs. But they never see a religious interest as sufficiently weighty to tip the scale in its favor.

When government disfavors an activity, any cost is deemed too high. Government looked at child care and day camps and saw that these are activities with a large, broad-based enrollment, and found a way to make them work. Overnight camps have a narrower constituency, which this summer is almost entirely religious, and so, despite the protocols developed by medical experts, government was not willing to permit it.

We are living at the convergence of the nanny state and the secular state. Government finds no value in religious practice and has no inclination to defer to parental choice for their children. Today’s fight might be about sleepaway camps, but if we don’t stand up forcefully for our rights, it will be a battle that we will face over and over again.