At about 8 p.m. on Feb. 27, constitutional attorney Nathan Lewin was sitting half-asleep in the aisle seat of an Amtrak train speeding south from New York to Washington, D.C. Seated next to him was his daughter and law partner Alyza Lewin. Shortly after crossing the bridge into New Jersey, as red and green track lights blurred past, his cell phone rang. Struggling against the din of a train car filled with passengers, and the exhaustion of a tiring day in Manhattan, Lewin tried to make out what was being said on the cell phone. "You are located where?" he asked. "Did you say Texas?"
From that Monday night moment and for the next four days, a tornadic frenzy of phone calls, text messages, e-mails, conference calls and voice mails was unleashed between parents and attorneys in Texas and Washington. It would all change a number of lives forever and make headlines worldwide as an international sports drama.
Beren Jewish Academy of Houston, an Orthodox Jewish high school, fielding a superb basketball team, had battled its way to the semi-finals of the Texas Association of Private and Parochial Schools (TAPPS). Ironically, although TAPPS was a sports league of private and religious schools, the association was determined not to honor any Sabbath except Christian Sunday. Moreover, the semi-final playoffs were deliberately scheduled for March 2, a Friday night, which meant that Orthodox Jewish students could not participate. TAPPS angrily and steadfastly denied all requests for accommodation for Beren's Jewish kids, refusing to move the game up just a few hours even though Covenant, the team Beren was scheduled to play, agreed to the proposed revised game time. That triggered a legal challenge in federal court which quickly led to TAPPS reversing its decision and rescheduling the Friday night game to early Friday afternoon in time for the Beren team to play. The pumped Beren team handily won the game. Headlines raced across the planet trumpeting a victory for the Beren team, for religious accommodation, for sports and for great storylines.
But unseen dramas swirled behind the headlines. None of the lawyers, students or parents knew what they would do until just moments before the conflicted attorneys and plaintiffs decided at the very last minute to file for a temporary restraining order. While many are still cheering the triple court victory -- in the court of law, on the court of basketball and in the court of public opinion -- deep uncertainty among the parties remains, both among the seeming winners and the clear losers.
Even now, weeks later, the head of the Beren Academy is unable to say "thank you" to the attorneys for the prodigious effort mounted on his students' behalf. The Texas Sabbath showdown was nothing less than a clash of cultures and personalities on all sides, including some of those on the same side.
Perhaps the root of the problem was TAPPS itself, a closely knit, Sunday-observing Christian basketball league invented in the late 1970s. TAPPS was unwillingly thrust into the modern world of interfaith cooperation by the Beren controversy. Three decades ago, the few dozen Texan Christian schools comprising TAPPS were in their own closed-off world of sports, observing Sunday Sabbath and playing on Fridays and Saturdays. Three decades later, the association has grown tenfold to between 200 to 250 schools -- not because it solicited new members, as TAPPS director Ed Burleson proudly avers. Burleson, a traditional Southern Baptist, explained that "we all recognized Sunday as the day of worship. The bylaws were written to state that TAPPS would not schedule any competition or activities on Sunday." At that time, Burleson recounts, there were no member schools that observed their Sabbath from Friday sunset until Saturday sunset.
But as the joys of athletic excellence spread to other Texas parochial schools, several non-Sunday Sabbath observers, such as those from the Orthodox Jewish and Seventh-day Adventist tradition, approached TAPPS to join. Being Christian in identity but not in name, the organization created an unaccommodating doorway for Orthodox Jewish and Seventh-day Adventist schools. Although TAPPS' bylaws allowed for the start times of games to be moved by mutual consent of the teams playing the game, the board informed these Saturday Sabbath observing schools that the semi-final and final rounds were nonetheless traditionally played on Friday evening and Saturday. Assuming that they would address the final championship scheduling issue when and if it ever arose, some eight Jewish, Adventist and other schools, including Beren, played season after season.
An uneasy competitive environment ensued. By admitting to the league but not accommodating Saturday Sabbath observers, TAPPS could cling to some semblance of its Christian and non-ecumenical identity while seeming to obey the law and not discriminate against other religions. Indeed, when asked about the essence of interfaith cooperation by TAPPS, Burleson corrected, "We don't embrace all faiths. We don't work with all faiths." Willingly relegated to second class, Jews and Adventists nonetheless felt they could inhale the rarified benefits of sports competition, assuming they could never even make the playoffs. If they did, their conviction would rule their hearts and they would just sit out the game rather than break their Sabbath. As Beren's head of school Rabbi Harry Sinoff explained, "The sacred mission will trump excellence in the secular world," adding, "We were willing to live with that." Rabbi Sinoff insisted, "The real victory for me is standing up for your convictions without blinking" and observing the Saturday Sabbath. "The rest," he quipped, "is just basketball."
Then something happened. Beren's basketball team got really good.
Was it time for Beren to join the ranks of other Texas religious students? Was it time for TAPPS to bend by a few hours and accommodate other religions? Both Beren and TAPPS were too comfortable in the way it has always been to imagine the way it could be. But both would reluctantly be brought into the new era.
Enter Nathan Lewin, half-asleep in that fast-moving Amtrak car, hearing from a Beren parent stepping away from a wedding in Brooklyn to make the call. The parent, Etan Mirwis, explained that back home in Texas, the academy's kids had been good enough to qualify for the semis but were being forcefully denied participation by TAPPS. Why? Because they were Jewish and the league would not change the game time. Lewin woke up.
America's most experienced litigator on behalf of Jewish causes, often referred to as "Defender of the Tribe," sprang into action. Honorary president of the American Association of Jewish Lawyers and Jurists, Lewin earned his reputation as an intrepid courtroom champion. He has been up to the Supreme Court 28 times. Moreover, he has secured highly contested, well-publicized judgments against the government of Russia for seizing historical archives of the Jewish Chabad group, against Hamas funders in the United States for enabling terrorism, and against the U.S. Army for denying a Jewish chaplain the right to wear a beard in the military.
It was clear from e-mails that TAPPS and Burleson would not budge. Beren Academy officials politely requested a schedule accommodation, as did parents. High-profile letters were sent by the Anti-Defamation League, Texas Senator John Cronyn, Houston Mayor Annise D. Parker and numerous sports luminaries. Pressure from growing media coverage added to the movement. All of it only caused TAPPS and its director to hunker into angry intransigence. One demure, almost obsequious letter from Beren requesting to advance the schedule just a few hours was met with a stern and explicit e-mail from Burleson:
"This is to advise you that the TAPPS Executive Board has voted to deny your appeal to re-schedule certain games in the State Basketball Tournament on March 2 & 3, 2012. The fact that your team participated in the bi-district, area and regional rounds of the play-offs, when it was not able to participate in the scheduled semi-final and finals games appears to be a violation of Section 138, C, 3, e." [Burleson added in bold type.] "Upon qualifying for the playoffs, schools must notify the TAPPS, office in writing if their team will not participate in all play-off games ... If for any reason, the team cannot follow the schedule as provided by TAPPS, the school shall remove itself from the play-offs without penalty so that the next highest ranked team may represent the district in the play-offs."
Another statement from Burleson brusquely rebuffed any notion of inclusiveness with these words: "I don't recall 'inclusive' being in our constitution." It was not clear whether Burleson was referring to the constitution of TAPPS or the Constitution of the United States -- or both.
Taking their offensive to a higher level, TAPPS announced that its board (said by Burleson to be comprised of six Protestants and three Catholics) had already voted to default the game in the favor of the opposing Christian team, which did not have a Friday night problem. Therefore, Beren had lost before the first dribble.
From the outset, Lewin knew TAPPS and Burleson would not bend absent a federal court order. Immediate litigation would be necessary if the TAPPS policy was to be challenged in time to reschedule the Friday night game. By sunrise on Tuesday, Lewin reached out to the seasoned litigators of a top Dallas law firm, Carrington Coleman, seeking pro bono assistance. Lewin laid out his legal strategy on the grounds of interference with religious freedom. Richard Rohan, one of Carrington's top attorneys, by chance an Orthodox Jew himself, stepped up to the plate to help draft the complaint for a temporary restraining order.
E-mails began to blaze. With distribution lists of five to seven names at a volley, and with many more forwarded in or BCC'd, hundreds flew back and forth. Recipient inboxes began filling up with opinions, status updates, questions, late-breaking insights and confidence builders. As soon as one e-mail was read, ten more appeared. File, delete, forward, print, file, file, file. Hour after hour. Augmenting the e-mails were numberless text messages and numerous conference calls with some participants sitting at their desks while others participated while standing on street corners.
Parent Mirwis, the driving force and a lead plaintiff, recalled, "By the time I landed back in Texas, I had more than 120 e-mails, half from the small group of people at the school who wanted to exert pressure to see if we could publicize this social injustice ... and the other half from the legal team. From Tuesday through Thursday, I was running through hundreds of phone messages, text messages, and emails. It was the most consuming three days I ever experienced in my life."
By Wednesday afternoon, Feb. 29, Lewin and the legal team were convinced they must file the suit that day in the coming hours. But who were the plaintiffs? Parents? Students? The school? What about the Seventh-day Adventists? This Christian Church, like Beren, observes Saturday Sabbath. The Seventh-day Adventists had successfully rescheduled one Saturday soccer game, but three other attempts by the Adventists (over the past decade) to reschedule basketball semi-final games were roundly rebuffed by TAPPS. The Adventist church certainly had an interest in insuring that their Sabbath observance was also protected in the future. Consultations among the parties spiraled up.
The stars seemed aligned for the supposed plaintiffs and their litigators. On the one side, an intransigent and unaccommodating association of religious schools; on the other side, a squad of kids with knitted yarmulkes longing for a chance to score hoops. Initially, attorney Rohan, who was personally acquainted with many of the Beren families, thought he would be advancing the same goals that they had. Lewin assumed that the school would naturally be ready to support the action as a plaintiff. They were both wrong.
The school wanted nothing to do with the suit or the effort. Beren's head of school Rabbi Sinoff verbalized the reluctance this way: "We do value success in the modern world. But not at the expense of who we are -- Shomer Shabbos (strict Sabbath observers)." Rabbi Sinoff added a phrase right out of Jewish history stating, "This is about asking nicely, not about demanding a right. No demand."
The entire case was stopped dead in its tracks. Rohan wondered if he could go ahead. "My concern was bringing upon Beren potentially negative hostile publicity. For me, this was personal. I would not have felt good about being a catalyst for that. I had a personal conundrum. But other attorneys here at the firm did NOT have a personal involvement. So the question was -- should I be the lead attorney?"
As the parents and lawyers fell off to sleep that Wednesday, no one knew if the case would be filed or who the plaintiff would be if it were filed. But during the wee hours, two Beren basketball players wrote moving e-mails supporting a lawsuit and explaining their reasons for wanting a court challenge. When Lewin awoke on Thursday, he knew the case would have to be filed. But who would file it, and on behalf of whom?
The school and its reluctiphiles had not given up on backing down from a confrontation with TAPPS. A parent called vigorously protesting to Lewin. An eminent Orthodox rabbi even phoned to dissuade Lewin from moving ahead. Could Lewin at least delay the filing of court papers, beseeched the rabbi? Lewin replied to the rabbi that the time was now. To his legal team, Lewin stated that TAPPS and Burleson were little more than bullies. Little did he know that even then the bullies were preparing to back down. During an ad hoc board meeting, TAPPS decided that it would hold fast and resist all pressure -- but would give in rather than fight any request for a temporary restraining order.
Thursday morning, March 1, before work, Lewin was praying at a New York City synagogue, where he discussed the case with other congregants who had already heard about the uproar in the New York Times and on Fox News. They all encouraged Lewin to press ahead. One congregant told Lewin, "The whole world favors the students -- except their school."
As the sun rose that Thursday morning, Rohan had indeed slept on it and now was certain the lawsuit had to be launched. He found another attorney in the firm to take the lead position. Rohan's name would be listed, but second. The finishing touches on the lawsuit asking for a temporary restraining order, a TRO, were cobbled together by the Lewins, Rohan and others. Long before many lawyers arrived at work that day, the papers were finished.
Lewin now knew he had student and parent plaintiffs. He knew he had a crack team of attorneys in Dallas. He knew his legal theory was sound and the papers were ready. He would be arguing the request for an injunction over the telephone to whatever federal judge would be assigned the case.
At 8:19 a.m. in Washington D.C., an hour earlier in Texas, Lewin used one finger to punch out a terse e-mail to the entire legal team. Subject: Fire When Ready.
Shortly thereafter, Rohan's office pressed the button on their keyboard and electronically filed with the federal court asking for an immediate hearing later that day -- within hours -- to compel TAPPS to reschedule.
Lewin was right. Within two hours, before the parties even had the chance to appear before a judge, TAPPS backed down. Burleson issued a public statement agreeing to bend even before any TRO was issued. The game was re-scheduled from Friday night to Friday afternoon.
The vindicating high-fives could be heard slapping through the phones and e-mails.
By the end of that Thursday, March 1, Burleson seemed completely dejected by the reversal. In a phone interview at the end of a tumultuous day, Burleson stated, "I have found out over the past three days that anything is possible." Asked if any good had come out of the controversy, he answered simply, "No." To describe his unhappiness, Burleson referred to "Well over one hundred e-mails from people I do not know. I deleted some of them because they were just clogging my e-mail. Nasty phone calls -- I have no idea how many I got. Maybe eight to 10 were vulgar and profane."
Asked if this episode had created permanent bad blood, Burleson replied, "I won't speculate on that. But," he added, "this has been a very uncomfortable experience for me as an individual. It will remain with me a long time."
Was this now an opportunity for TAPPS to reach out and embrace other faiths in its midst? Burleson rebuked that notion. Asked if he, as the director of a parochial school association, even knew any Jewish people, Burleson paused, and then answered, "I can't think of a Jewish person that I have any contact with." Burleson insisted the TAPPS policy of observing Sunday as a Sabbath and playing games on Friday night and Saturday had not changed -- just this one game was pressured into a schedule change by the TRO.
The next day, a pumped-up Beren basketball team hit the court running. They won the playoff and the right to play in the championship game the next night after the Jewish Sabbath. The next night, the Beren team lost the championship by two baskets. But they won the greater battle by a generation. Some 1,700 people around the world watched the game, streamed live over the Internet. Player Isaac Mirwis Fedexed his two Jerseys, emblazoned with the number 13, to Washington D.C. Nathan and his daughter both proudly wore the Jerseys to the Purim festival in their synagogue.
But perhaps things were indeed changing in Texas. During the game, the plaintiff parents approached Burleson with good will and extended their hands. Now it was about the basketball. Just basketball. They reported that Burleson seemed to be smiling.
Shortly after the weekend games, Burleson issued an unexpected statement. Perhaps TAPPS had stepped through the doorway. In commenting on the Beren case, Burleson declared, "Our state is becoming more diverse. Because of that, we are reaching out to leaders around the state. We want to listen, to hear their concerns and most of all, to hear their ideas." This entreaty was heralded by many as a potential vindication for modernity.
Then came a retreat back through the bunker door. In a subsequent statement, Burleson issued an unexpected legal rationale for refusing to accommodate other religions. "The Texas Association of Private and Parochial Schools (TAPPS) is a private Organization," stated Burleson in a policy mini-manifesto. "As such, it has the constitutional right of freedom of association, and like all other private associations, has the right to choose its membership based on a set of beliefs or practices that further its objectives. This legal principle has been clearly established by the U.S. Supreme Court in Rumsfeld v. Forum for Academic & Institutional rights, Inc. 547 U.S. 47, 66 (2006); Boy Scouts of America v. Dale, 530 U.S. 640, 647-48 (2000); Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984)."
The TAPPS legal promulgation segued into this telling presage:
"Ultimately, no organization can accommodate everyone's needs. If TAPPS cannot accommodate schedule changes for schools who observe a Saturday Sabbath, that decision is not a criticism or lack of respect for their beliefs or the free practice of their religion. It simply means that the practical exercise of their religion is not a practical fit for an organization that has and must continue to host its events and championships on weekends in order to best serve its membership. Neither is right or wrong, just different."
This "freedom of association" declaration was a mere prelude to what TAPPS is calling a "survey" of its member schools to determine if the organization should become more inclusive or in essence remain a Christian-only and Sunday Sabbath-only association of religious schools. Burleson stated the survey would go out this week via SurveyMonkey. He expected his members to be split perhaps 50-50 on the organization's future.
While the survey read in a vacuum will undoubtedly seem like a genuine solicitation of member views, the survey is best read with a companion multi-page package separately circulated and designed to prejudice the answers. That package sets up the respondent with a reminder that TAPPS was organized as a Christian Sunday-only Sabbath-observing parochial school sports association, and retains the legal right of association with an exclusive religious group. The survey package concludes with a two-page diatribe entitled "Beren Academy" that virtually paints the school as devious in asking for a Sabbath accommodation, castigating that request as "completely contrary to ... representations to the Executive Board three years earlier when seeking membership."
The survey preparation package goes on to explain, albeit falsely,
The false re-telling of this very recent history pretends the injunction petition "sought a delay of the entire tournament," when in fact Lewin and other lawyers sought just a single game to be advanced by only a few hours so Beren could participate. Moreover, the statement pretends there was no time to respond to the TRO. In truth, the federal judge appointed to the case was ready to hear arguments by all parties by telephone amply in advance -- but the TAPPS board had already decided the day before being served not to contest a TRO demand should one emerge.
"At 9:53 a.m. on Thursday March 1, 2012, one day prior to the scheduled start of the state tournament, the TAPPS office received a copy of an Application for a Temporary Restraining Order and an Application for Temporary and Permanent Injunction. The lawsuit sought a delay of the entire State Basketball Tournament, not just the 2A Boys Division, unless Beren Academy was allowed to compete. Legally, TAPPS could have contested the TRO and won, but there was not enough time to secure a hearing before the start of the tournament. Faced with delaying the entire tournament, the TAPPS Executive Board made the decision to allow Beren to compete. To do otherwise would have caused the unnecessary re-scheduling of travel plans and hotel accommodations as well as additional expenses for the teams and fans of the other 36 TAPPS schools not involved in the Beren issue."
Therefore, what appears to be a dispassionate, almost scientific in-gathering of member beliefs and preferences is in reality a biased survey beckoning a return to the good old days before all those inconvenient minority groups were allowed in.
None of this has escaped the notice of the Texas Catholic Conference, which mustered its own membership to reconsider its involvement with TAPPS on the grounds that TAPPS had transgressed Christian principles. In a March 22 letter, Margaret McGettrick, Education Director of the Texas Catholic Conference Education Department, told Burleson, "I am writing to you at the direction of the 14 Catholic school superintendents of Texas and as Education Director of the Texas Catholic Conference Education Department. As you know, the 43 Catholic high schools in the State comprise almost 20 percent of your organization's current member schools."
The Texas Catholic Conference letter objected to the TAPPS refusal to admit Muslim schools, as well as Burleson's defiance in the Beren Academy case. "The fact that it took filing a lawsuit," McGettrick wrote, "and the relative ease with which the scheduling was solved strongly reinforces the concerns of the Texas Catholic Conference Education Department and the Catholic school superintendents with the structure, policy, and apparently insensitive attitude of TAPPS." She added, "Our response to the Gospel requires us to respect others and live a true sense of fair play. These actions, simply put, are not acceptable to us as Catholic Christian institutions." She ended with an explicit warning: "Failure to sufficiently improve the structure and management of TAPPS will require a re-examination of our 43 Catholic schools' continued affiliation with TAPPS and instead seek other alternative options that are better aligned with our Catholic beliefs and convictions."
The en masse exit of Catholic schools, the excision of Jewish and Seventh-day Adventists schools and the hardened rebuff to any affiliation with Muslim schools may be just what the inner core of TAPPS leadership desires. TAPPS itself does not even define Catholics and Christians in the same column. In its survey preparation package, the organization divides its 224 members by number into various columns. Those columns are Catholic, non-Catholic, Non-Church, and "Adventist/Jewish" which share a column distinguished by a devotion to Saturday as Sabbath. In truth, a smaller and entrenched affiliation of Sunday Sabbath worshiping athletes, to the exclusion of all others, can be clearly inferred as TAPPS leadership's desire.
Ironically, the TAPPS position on Sunday-only Sabbath is being bitterly fought out of doctrinaire respect for the Christian observance. Yet, anyone who knows their religious history knows that Jesus Christ knew only one Sabbath. It began Friday at sundown and continued until sunset on Saturday.