The Legal Edge
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|Edwin Black||April 28th 2009|
The National High School Mock Trial Championship is esteemed for bringing young people into the best traditions of the American legal system. But now the organization is being broadly criticized from the halls of Congress to state bar associations and attorneys general for clinging to one of the nationâ€™s worst traditions: religious insensitivity.
The charge stems from the national mock trial groupâ€™s refusal to accommodate the need for an Orthodox Jewish team from Maimonides School from Brookline Massachusetts to reschedule its event from Saturdayâ€”the Jewish Sabbathâ€”to a Thursday or Friday as has been done in the past.
From May 6-10, state champions from across the United States will assemble in Atlanta to compete in the national finals. A decision to accommodate the Sabbath observers must be made immediately. Hence, a showdown is looming in the coming days as high-profile Jewish cause attorneys Nathan Lewin and Alyza Lewin, the Anti-Defamation League, and supportive circle of prestigious legal personalities try to convince the national office to be flexible. If not, advocates are considering civil rights litigation and a Department of Justice civil rights investigation; and the national association risks yet another black eye for its inability to accommodate the needs of minoritiesâ€”many would say, the essence of jurisprudence.
The genesis of the case really starts not in Massachusetts or Atlanta but in New Jersey in the last century. In the late 1990â€™s, the New Jersey Bar Association Foundation realized that that Orthodox Jewish day schools were among the leading finalists in its state mock trial competition. The New Jersey State Bar Foundation asked the National High School Mock Trial Championship to accommodate Sabbath observers in national competition scheduling. To do that, some Saturday sessions would have to be rescheduled to the Thursday and Friday tourney days. More than just individual students, entire teams from orthodox schools were involved. Hence, the seemingly small accommodation seemed sensible. But the national body saw it as an infringement of its authority and refused any schedule accommodation on the basis of religious observance.
Four years ago, in early 2005, the issue arose in earnest. The Torah Academy of Bergen County won the New Jersey state competition. Again, when approached, the national body again stubbornly refused to adjust the competition schedule for religious reasons. At the time, the North Carolina Academy of Trial Lawyers was hosting the national championships. Despite the national officeâ€™s refusal, the North Carolina Academy of Trial Lawyers in conjunction with the New Jersey Bar Association agreed to the minor schedule switching needed, thus allowing the Torah Academy of Bergen County students to participate in the finals. Four rounds were slated for Thursday and Friday instead of Saturday. Moreover, they elected to delay commencing the final round until after sundown on Saturdayâ€”the end of the Jewish Sabbathâ€”should the New Jersey students win finalist status. Apparently the adjustment was easy. Only two teams needed to volunteer for new schedules and more than 10 offered. The adjustment was applauded for demonstrating the value of religious tolerance in a pluralistic juridical system.
But the national bodyâ€™s leadership was outraged, according to attorneys familiar with the case. It passed a resolution prohibiting any such accommodation in the future. â€œDuring the meeting of the State Mock Trial Coordinators in May 2005,â€ explains John Wheeler, Board Chairman of the National High School Mock Trial Championship, â€œthe coordinators voted not to permit future modifications to the competition schedule format. It is the opinion of the State Coordinators and the Board that while the [New Jersey contestant] accommodation may have allowed full competitive participation, it unreasonably affected the conduct of the national tournament and forced unreasonable alteration to the planned schedule of events.â€
Responding to that vote, the New Jersey Bar Foundation and the North Carolina Academy of Trial Lawyers both withdrew from future participation in the National High School Mock Trial Championship. Whatâ€™s more, the national bodyâ€™s resolution was unanimously condemned by the House of Representatives in a September 2007 vote. House Resolution No. 25 termed the national mock trial bodyâ€™s decision â€œinconsistent with the spirit of freedom of religion, the kind of spirit on which this country was based.â€ Video transcripts and House records show a host of legislators rising to express their dissatisfaction, citing the specific of the New Jersey case. Rep. Rush Holt (D-NJ) was typical when he asserted, â€œIt is not without irony that this was applied in a competition that is intended for legal and constitutional education.â€
However, Wheeler in an April 20, 2009 letter to the Anti-Defamation League, obtained by this reporter, openly denigrated the Congressional resolution. â€œThis ill-considered action by the House of Representatives demonstrated a remarkable lack of due process,â€ wrote Wheeler. He belittled the unanimous House resolution as a â€œmundaneâ€ and â€œpurely political maneuver which certainly does not reflect the informed judgment of the United States Congress.â€
The issue has returned to the front burner because the Maimonides School of Brookline won the Massachusetts mock trial competition this year. As the New Jersey and North Carolina groups before it, the Massachusetts Bar Association has requested the National High School Mock Trial Championship office make the minor schedule adjustment needed. Reportedly, only two out of 100 round needs to be rescheduled. Once again, the national office has refused.
The Anti-Defamation League entered the fray with an April 9 letter to Wheeler. â€œRegardless of the rationale for your decision regarding denying this religious accommodation in this case,â€ wrote ADL civil rights director Deborah Lauter, â€œit sets an extremely poor example for the students you are educating. Moreover, we think that denying the students the opportunity they have earned to participate in the championship is not a policy with which Americaâ€™s state bar associations ought to be associated.â€ Because the competition is being hosted by the Georgia Bar Association, Lauterâ€™s letter was openly copied to Georgia Attorney General Thurbert Baker, Georgia Bar Association President Jeff Bramlett, Georgia Supreme Court George H. Carley, and others with a stake in supporting the mock trial championships.
That led Georgia Attorney General Thurbert Baker to join the ADL position with his own April 20 letter to Wheeler. â€œAs you are aware,â€ admonished Baker, â€œI personally supported Atlanta's efforts to host this competition, and I remain proud of that support. My past support of your organization, however, does not diminish the concern when I heard that there is a very real possibility that the team from the Maimonides School, the official representative of Massachusetts at this event, might not be able to compete due to the Competition committee's unwillingness to schedule around Shabbat. As you are aware, the beliefs of the Maimonides School will not allow their students to compete on Shabbat, creating the potential that these students may not be able to realize the benefits of the competition here in Atlanta. I have expressed similar concerns to Jeff Bramlett, president of the State Bar of Georgia, whose organization is hosting the event. I hope that this matter can be resolved in a manner that does not force these students to choose between deeply held religious beliefs and participation in a competition for which they have worked so hard.â€
Wheeler however was not swayed. In a defiant six-page rebuff to the ADL that same day, April 20, Wheeler asserted, â€œThe NHSMTC is a voluntary membership organization composed of the various state mock trial programs that are themselves autonomous entities. Typically, as many as 44 states and territories designate champions to participate in the national competition. There is no requirement or obligation that any state participate in this tournament.â€ He added that schedule shuffling might make it difficult for far away teams to attend such as those from â€œGuam, the Northern Mariana Islands, and Hawaii.â€
Wheelerâ€™s letter to the ADL defended the organizationâ€™s policy and rejected the 2005 North Carolina-New Jersey precedent as one that â€œforced a departure from this system in a manner that fundamentally impacted the integrity of the prescribed power match system and was unfair to the vast majority of participants.â€ Specifically, claimed Wheeler, â€œIn the second round in 2005, the New Jersey team should have faced a power-matched opponent, but this was impossible since no other teams had yet competed. This created an unfair advantage for the New Jersey team. In the fourth round for New Jersey on late Friday afternoon, its opponent was only given minutes notice that they would be competing in this round, thus affording them no preparation time; while the New Jersey team knew several weeks in advance that it would be competing at that time.â€
Wheelerâ€™s rationale were dismissed out of hand by critics and jurists alike contacted by this reporter. Steven M. Freeman, ADL Legal Affairs Department director, stated, â€œWe recognize that the accommodation the Maimonides School is requesting may complicate the tournament scheduling for other teams, but are troubled by the apparent hostility of tournament officials and fail to understand their unwillingness even to consider alternatives which would enable the deserving Jewish students to participate.â€
Wheeler did not return two deadline calls for comment.
Facing seeming intransigence by Wheeler, high-profile Jewish cause attorneys and constitutional experts Nathan Lewin and his daughter Alyza Lewin became involved. On April 22, 2009, they filed a complaint letter with the Civil Rights Division of the Department of Justice, on behalf of several students on the Maimonides mock trial team and their families. The DOJ is now examining the issue. Moreover, legal scholars say the Georgia State Bar may be compelled to overrule the national group, as has been done before.
â€œSince Georgia State Bar is a state actor,â€ Alyza Lewin states, â€œit is prohibited from engaging in such discrimination by the United States and Georgia Constitutions and by federal and state law. As the host of this yearsâ€™ national competition, it is incumbent upon the Georgia State Bar to follow the example of the North Carolina hosts in 2005, and to make the modest adjustments to the competition schedule that would enable Maimonides to participate fully in the competition. Refusing to make the necessary adjustments opens up the Georgia State Bar to legal liability should the students and/or their parents sue for damages under 42 USC Â§1983.â€
To prove their point, Lewin and Lewin asserted, â€œIt is the host state, Georgia, that runs the 2009 NHSMTC event. The Young Lawyers Division of the Georgia State Bar put together the successful bid material. Georgia bar personnel created, organized and are administering the program. There is a â€˜mock trialâ€™ office run by Georgia bar employees for this event. The organizing committee solicited funds and raised a substantial amount from state and county bar organizations in Georgia. The Fulton County courthouse will be used for the event and over twenty Georgia courtrooms have been set aside for the trial. Georgia state judges will be judging the competition.â€
Lewin and Lewin assert, â€œIf the NHSMTC refuses to adjust the competition schedule, the Georgia State Bar should inform the NHSMTC that it believes the Georgia Bar is legally obligated (by the Constitution and Civil Rights Act) to make the adjustment, and the Georgia State Bar should move forward to take whatever steps necessary to put the schedule adjustment into effect.
At press time, both sides were holding fast making a showdown seemingly avoidable.
Edwin Black is the New York Times best selling investigative author of IBM and the Holocaust, and his just released book, Nazi Nexus: America's Corporate Connections to Hitler's Holocaust (Dialog Press 2009), which can be see at www.nazinexus.com.