February 28, 2012 | 11:23 am
Posted by Brad A. Greenberg
If I remember correctly, the Jewish Jordan left the University of Maryland because he found that he couldn’t both observe the Sabbath and meet his commitments to the basketball team. God came first. Basketball was always a distant second.
But here’s a whole team of Jewish ... well, not Jordans—maybe Fishers, who are skipping the Texas state high school basketball semifinals because the game is scheduled for 9 pm Friday night.
The Robert M. Beren Academy, an Orthodox Jewish day school, had filed an appeal to have the game time changed, but the Texas Association of Private and Parochial Schools rejected the appeal Monday. The director of the association defended the decision to the New York Times:
“When Beren’s joined years ago, we advised them that the Sabbath would present them with a problem with the finals,” Edd Burleson, the director of the association, said. “In the past, Tapps has held firmly to their rules because if schedules are changed for these schools, it’s hard for other schools.
“If we solve one problem, we create another problem.”
Membership in the association is voluntary, Burleson said.
“If the schools are just going to arrange their own schedule, why do we even set a tournament?” Burleson said. “Over a period of time, our state tournament, which is a highlight of our association, deteriorates to nothing. That’s the whole point of having an organization.”
That’s well and good. Beren was on notice years ago that this could be an issue, and they presumably agreed when they joined to abide by scheduling decisions. But I hear something concerning in Burleson’s comment, particularly the last one. Beren didn’t ask for a scheduling change out of convenience—it was out of conviction. At best, this evinces a poor understanding of why Beren filed the appeal. At the other end, it could be religious discrimination, even if not intentional.
And Burleson’s parade of horribles is nonsensical. How would adjusting the scheduling process to move the semifinal and finals to mid-week the following week if and only if a Jewish day school team has made it to that level deteriorate the association to nothing.
This is, of course, an old problem in youth sports. It feels like every few months I read a story like this. In some instances, there are colorable questions of religious discrimination. Patrick Sterk, author of To Pray or to Play: Religious Discrimination in the Scheduling of Interscholastic Athletic Events (18 Sports Law. J. 235 (2011)) discussed this last year at The Legal Blitz.
Without knowing more, it’s difficult to say whether the Texas association would be a government actor because it’s an association of private schools, and unless the association is a government actor, there can be no constitutional or statutory violation. (A little background from the Volokh Conspiracy on religious exemption law.) However, assuming that the association is a government actor, the claim would be either that the association failed to make a reasonable accommodation or that the policy has a disparate impact on those who observe the Sabbath.
Litigation, though, is not on the minds of the Beren basketball players. As the school’s Rabbi Harry Sinoff told the NYT: “The sacred mission will trump excellence in the secular world.”
(Hat tip to Marta Godecki, the awesome editor of this piece.)
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