Arguing on behalf of Orthodox Jewish parents, attorney Avi Schick told a federal court via teleconference hookup that since the governor is allowing day camps to operate, day care centers to function, college dorms to open with congregant eating and sleeping areas – as well as sanctioning protests in the streets and opening theater lobbies as refuge for bystanders and protesters – Jewish sleep away camps should be allowed the same exemption from executive orders banning unnecessary gatherings.
While Schick argued the narrow viewpoint citing the impact the ruling will have on 60 camps caring for 42,000 Jewish campers, mostly from those who attend Jewish day schools and yeshivas, Christopher Liberati-Conant, arguing for the state, told the judge they have to view this ruling from a broader perspective of all overnight camps wanting to open. There are more than 500 sleep away camps across the state, according to Liberati-Conant.
“If the ban on overnight camps was lifted then overnight baseball camps and chess camps could argue for exemptions due to the benefits of the immersive camping experience.
“Since the executive order applies to all overnight camps the rule is not discriminatory,” Liberati-Conant said. Intimating to the existence of the litigious society we live in, if an exemption were made in this case then another lawsuit, by a separate group, could claim discriminatory action. “You can’t have an order that will only favor Jewish overnight camps,” Liberati-Conant told the court.
Schick countered by arguing, “There is no such specific order banning overnight camps.” To which Liberati-Conant referenced Executive Order 202.41, “requiring the reduction of workforce by 100%.” However, the crux of the Executive Order only referred to businesses eligible to reopen under Phase Three of the regional approach to getting the state back on track and not a reduction of workforce.
Judge Glenn Suddaby worried about the bunk houses the campers would be sleeping in as confining and prone to spreading the coronavirus overnight when campers would sleep without masks.
“You can’t keep kids from pulling off their masks in the middle of the night,” Liberati-Conant pointed out.
Schick explained to Suddaby that the dorms or bunks, when they went to camp, were very different from today’s more modern dorm-style accommodations. Schick also argued that “a state of horribles apply” to day campers who are more susceptible to contracting the coronavirus through after-camp activities which include mixing with friends, family and strangers who might spread the virus. “When the camper returns to camp, they could return infected and spread it to adults,” Schick noted.
During the 70-minutes of arguments, Schick furthered his assertion by saying that “there is no evidence children are getting infected by the coronavirus. The state’s health and safety argument must be backed up with something,” he said.
The court also heard arguments regarding the Kawasaki-like syndrome which uniquely impacts children. “Children are silent spreaders if they are symptomatic,” Liberati-Conant argued.
Suddaby acknowledged there are still “a lot of unknowns.”
Schick also told the court that in a sleep away situation campers are in an insular bubble having no contact with others from outside the confines of the campgrounds. Food deliveries and supplies from local grocers would be accommodated through a separate entrance away from the campers.
But the judge also expressed concern about the health impact on the local community the camp is located since the campers come from highly-impacted areas of the New York City area and New Jersey to the rural areas of Ulster and Sullivan counties. Liberati-Conant said, “Campers are coming from the hottest Covid hotspot in the state” to one of the lowest affected areas in the state. The main concern for the state is “the grave and overwhelming impact to the state health care system. In Sullivan County there is only one critical care hospital.”
Regarding overnight dorms and eating arrangements, Liberati-Conant noted that college dorms are not the same as dorms for an overnight camp. “You don’t have large rooms in colleges and the health care structure at colleges are stronger and set up better to respond to virus outbreaks than overnight camps,” he said.
Suddaby wanted clarification regarding the immersive experience at sleep away camps. “A child can go to a day camp to get their religious instruction.”
To which Schick argued that there is “a special value of having a prolonged immersive environment of Jewish learning.” He called it “transformative.” He said there are three to five sessions per day of religious learning, prayers during mealtime and the “Shabbos is a life-altering experience at overnight camps.” He also said, “Parents find there is a deep religious value in the immersive overnight camp experience for children who are isolated from the outside world on the Sabbath.” He recommended the court read the book The Holiness in the Tent.
There were 15 participants either listening to or watching the arguments via a variety of teleconference hookups. The new-fangled technology certainly had its glitches. Schick was speaking so fast in the beginning of the proceeding the judge had to interrupt to tell him “to slow down, we’ll give you all the time you needed. The court reporter can’t keep up with you.”
Then 15 minutes into the arguments, Schick’s link dropped out. His Atlanta-based colleague on the call tried feverishly to find Schick, based in Manhattan, through text messaging, phone calls and emails but to no avail. The judge waited patiently and Schick eventually returned to the hookup with an assistant in his room in case the hook-up dropped out again. It did but this time for only a couple of minutes. To which, the judge remarked, “Technology is great when it works.”
Schick’s colleague on the teleconference court proceeding, W. Alexander Smith, is a 2012 graduate from the University of Georgia with a bachelor’s degree in religion. He graduated from law school five years ago.
Suddaby heard arguments Tuesday morning and offered both sides the opportunity to submit additional arguments by the close of business Wednesday, limiting the submission to only 10 pages. Suddaby acknowledged he is sensitive to the need for a quick decision in this case.
The case was heard in the Northern District Court of New York because the lawsuit was brought against Governor Andrew Cuomo who primarily resides in the federal court district. Suddaby holds court in Syracuse but can hear cases anywhere in the 32-county region stretching from the Finger Lakes to the Canadian border to the mid-Hudson Valley.
Commenting on the case, Rabbi Chaim Dovid Zwiebel, vice president of Agudath Israel of America, said, “Overnight summer camping has always played an important role in the religious development of our youth. All the more so in a time like this, when so many children have been away from yeshiva for so many months. We believe our attorneys have made a powerful legal case for the camps to be opened. B’siyata di’shmaya, we look forward to a successful result.”