Judge Denies Motion to Open New York Sleepaway Camps

A federal judge has denied a motion seeking to overturn New York state’s ban on overnight camps, dealing a blow to the summer plans of tens of thousands of children already shut in for well over 100 days during the coronavirus pandemic.

New York has banned sleepaway camp for this summer season – even in those regions that have already entered “Phase 4” of reopening – despite allowing day camps. The Agudath Israel-led Association of Jewish Camp Operators, and several parents, filed a lawsuit against Gov. Andrew Cuomo, arguing that the ban violates religious liberties due to the unique religious nature of Jewish camps, and discriminates against Jewish camps since by the time of the ban, virtually all non-Jewish camps had voluntarily announced that they would not be opening for this summer.

The plaintiffs sought a preliminary injunction to allow the camps to open immediately while the case was heard on the merits. But on Monday evening, Judge Glenn T. Suddaby, Chief Judge of the U.S. District Court for the Northern District of New York in Albany, denied the motion for injunction in a 43-page decision, stating that the plaintiffs were unlikely to win on the merits.

“The Court will not second-guess the wisdom or efficacy of Defendant’s emergency measures to combat a public health crisis,” Suddaby wrote, “unless the Court finds that the actions taken do not lack a real or substantial relation to the public health crisis and are not, beyond all question, a plain, palpable invasion of rights secured by the fundamental law. “

Suddaby, an appointee of President George W. Bush, said that the decision to ban sleepaway camps had a “real or substantial relation” to the pandemic, and noted that despite a drastic reduction in the rate of increased infections across New York, there are still new cases in the state. But “what is particularly worrisome,” the judge wrote, “is the recent dramatic rise in COVID-19 cases and deaths in several other states, which provides ample warning that a momentary decrease in the daily rate of infection does not mean that it cannot increase in the future in New York State if the conditions imposed by Defendant’s executive orders are not sufficiently followed.”

Suddaby cited from a statement by State Health Commissioner Dr. Howard Zucker announcing the ban on June 12, that sleepaway camps “are a difficult setting to manage social distancing and face covering and infection control practices,” and “have congregate settings and sleeping arrangements in close quarters that present too many risks.” While the camp operators and parents disagreed with the state about the dangers of sleepaway camps when precautions are taken, Suddaby said he would not second-guess the state’s decision-making in its emergency measures in dealing with the coronavirus pandemic.

Suddaby said that there “appears to be more than one reasonable response to the COVID-19 virus,” and that the state’s “decision to ban overnight camps (even without exception) bears a real or substantial relation to his interest in suppressing the spread of the COVID-19 virus. The Court will not substitute its own view of another measure it believes would have been more appropriate under the circumstances.”

The camp ban was not deemed a violation of religious rights – despite plaintiffs having argued that camps are a religious experience and that Jewish camps were the only ones seeking to operate at the time of the ban – since it was a neutral law that applied to all overnight camps, religious and secular.

“The fact that Plaintiffs have maintained a hope and willingness to operate or send their children to overnight camps this summer longer than most persons involved with secular or non-Jewish overnight camps,” wrote Suddaby, “does not somehow turn Defendant’s facially neutral executive order into impermissible targeting.”

Suddaby also rejected the plaintiffs’ argument comparing sleepaway camps to higher-education dormitories, noting that camp bunkhouses are traditionally one large room, whereas dorms are generally a large building with smaller rooms that accommodate a small number of people, often with separate bathrooms. “Although Plaintiffs acknowledged that the number of campers assigned to a cabin may have to be smaller to abide by social distancing practices,” Suddaby wrote, “the Court concludes that the overnight camps’ cabins are not comparable to higher education dormitories.”

Suddaby likewise rejected plaintiffs’ attempted analogy to day camps and childcare facilities, which are also permitted.

“Although day camps and childcare facilities have congregate settings,” Suddaby wrote, “they are significantly more limited than those settings present in overnight camps. Day camps’ congregate settings are traditionally limited to the dining facility, where campers usually [congregate] for just one meal a day, as compared to overnight camps where campers traditionally congregate for three meals a day and then congregate again (this time with a smaller group) for approximately eight hours in an enclosed area, usually for weeks on end. By nature, day camps and childcare facilities provide less opportunity for the transmission of the COVID-19 virus simply because the individual attendees spend significantly less time with their fellow campers as compared to overnight camps. As the State argues, groups of individuals contained within a confined sleeping area each night runs contrary to the public health principals that have helped New York State substantially reduce the transmission of the COVID-19 virus.”

The judge also said that campers traveling from cities to camp locations upstate, such as Sullivan County, “can create burdens on local resources,” such as hospitals, “that are not present with day camps or childcare facilities.”

Finally, Suddaby rejected the plaintiffs’ argument that Cuomo could not ban overnight camps while permitting large Black Lives Matter protests, at which theaters and museum lobbies, shuttered during the pandemic, opened to provide restrooms and respite for protestors.

“Permitting children to sleep in groups in enclosed spaces for eight hours per day in overnight camps is not sufficiently comparable to permitting conscious adults to shelter for shorter periods of time inside theater and museum lobbies during mass protests,” Suddaby wrote.

While acknowledging that “mass protests may provide somewhat similar difficulties to manage social distancing and infection control practices,” Suddaby said that the congregate settings and sleeping arrangements in overnight camps causes them “to be potentially more dangerous for the transmission of the COVID-19 virus, as compared to the mass protests.”

Plaintiffs did not immediately indicate whether they would appeal Suddaby’s denial of the preliminary injunction.

While some camps have already moved out of state or opened as day camps, and others that have older teens have been permitted to open legally, Suddaby’s ruling dashed the hopes of tens of thousands of children – and their parents – who have been looking forward to a pleasant summer upstate, away from the hot and cramped cities where they have already been shut in for three-and-a-half months.

Rabbi Yeruchim Silber, Agudah’s New York Government Relations Director, said the ruling will have a “devastating” impact on children.

“Instead of looking forward to a summer of growth, filled with learning experiences and preparation for an upcoming school year,” Rabbi Silber said, “many children of our community will now be forced to endure a continuation of the long-lasting lockdowns imposed by the state government.”

Cuomo’s office did not immediately respond to Hamodia’s request for comment on the ruling.

Avi Schick, lead attorney for the plaintiffs, told Hamodia, “We are all incredibly disappointed” with the ruling.

“We continue to believe that the overnight camp environment is better for our children both physically and spiritually. The camp directors worked hard to create plans that would ensure the safety of all campers,” Schick said. “To the thousands of parents and tens of thousands of children who are impacted by today’s decision, we can only say that we will continue to do what we can to advocate for your rights.”

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rborchardt@hamodia.com