Two weeks ago, late in the day on Friday, June 12, the battle lines were drawn over whether sleep away camps can open this summer. The New York State Health Commissioner, Dr. Howard Zucker, officially ordered sleep away camps closed for the 2020 season, costing more than 70 Jewish camp operators millions of dollars.
Earlier this month, Governor Andrew Cuomo said the decision was linked to the impact Kawasaki disease could have on youngsters. Kawasaki disease causes swelling (inflammation) in the walls of medium-sized arteries throughout the body, according to the Mayo Clinic. It primarily affects children. The inflammation tends to affect the coronary arteries, which supply blood to the heart muscle. The disease also affects glands that swell during an infection (lymph nodes), skin and the mucous membranes inside the mouth, nose and throat.
“If I wouldn’t send my children to sleep away camp, I wouldn’t allow you to send yours. This year I wouldn’t send any of my three children to sleep away camps,” Cuomo told reporters at a recent news conference in Albany.
In his announcement, Zucker cited reasons for the closures that the Association of Jewish Camp Operators claim have already been addressed.
“Unlike day camps, which are approved to open June 29, overnight camps are a difficult setting to manage social distancing and face covering and infection control practices,” Zucker wrote. “Overnight camps have congregate settings and sleeping arrangements in close quarters that present too many risks. In such a setting, even a single positive case in a camper or staff member could create an untenable quarantine situation and overwhelm camp health personnel that may not be able to handle a serious infectious outbreak of this nature.”
The following week, the Association of Jewish Camp Operators (AJCO), an umbrella organization formed by Agudath Israel of America, in addition to four parents, two of which are medical doctors, filed a lawsuit in federal United States District Court for the Northern District of New York against Andrew Cuomo as governor of the state of New York. The lead attorney for the court action is Avi Schick, a former government employee who worked in high-profile roles under the Eliot Spitzer and David Paterson administrations, including as a deputy attorney general under Spitzer prior to joining his administration.
Ironically, it was Schick’s father, Marvin, and Cuomo’s father, Mario, who went head-to-head in the 1970s, during the John Lindsay administration, over erecting public housing in a middle-class area of Forest Hills, Queens. The case pitted black and Jewish groups against each other and launched the political career of Mario Cuomo. Published in 1974, Cuomo wrote a book about the incident entitled Forest Hills Diary: The Crisis of Low-Income Housing. Now the two sons are pitted against each other over the health and safety of children who want to be immersed in Jewish education and fun after three months of distance learning.
Schick is representing a consortium of 76 sleep away camps located in the Catskill Mountains, the AJCO, a conglomerate serving approximately 41,000 children. The argument Schick is making to the court is that the governor “has refused to consider the health and safety protocols developed by Jewish overnight camps, in consultation with an esteemed group of physicians and health policy professionals. These health and safety protocols would render overnight camps considerably safer than the exempted mass protests as they relate to the transmission of COVID-19. The health protocols that the overnight camps would implement are similar to, but even more protective than, those issued by the Department of Health governing comparable secular conduct, such as day camps and child care services.”
In the lawsuit, Schick further argues, “The members of the Association wish to hold overnight camps this summer to provide this vital religious and developmental experience for Jewish children, but (the governor’s) restrictions render such conduct illegal and subject to penalty.”
The lawsuit contends the parents and association “encourage governmental respect for and accommodation of the First Amendment rights of protesters to engage in free speech and assembly. Plaintiffs merely request the same treatment for overnight camps, which the First Amendment protects as vigorously as it protects the mass protests, which are safer than the mass protests, and which will adhere to detailed health and safety protocols similar to those the State has imposed on comparable secular activity designed to curb the transmission of COVID-19,” Schick argued.
Schick contends in the lawsuit that the “statewide closure of all Jewish overnight camps this summer violates Plaintiffs’ constitutional rights of the free exercise of religion and the fundamental rights of parents to control the religious education and upbringing of their children, guaranteed by the First and Fourteenth Amendments of the United States Constitution and Article III, § 3 of the New York Constitution.”
The lawsuit attacks the governor’s position on two fronts. Schick argues that the differences in health and safety protocols between day camps and sleep away camps. “Unlike day camp children and staff who will remain in their at-home communities this summer and will interact with fellow campers and a rotating cast of relatives, friends, neighbors, and shopkeepers every night, especially in areas of New York City with considerable population density, children and staff who attend Jewish overnight camps are removed from the community and isolated among the same group of individuals.”
On another front Schick argues the differences between the prohibited insular sleep away camps and the sanctioned mass protests after the George Floyd murder: “If allowed to open overnight camps, the members of the Association would adhere to the health and safety guidelines designed to curb the transmission of COVID-19 at overnight camps. These health protocols will ensure that the overnight camps are much safer than the mass protests that (the governor) has exempted from the [s]tate’s in-person gathering restrictions, which raise the same or greater health concerns for the transmission of COVID-19 as do overnight camps. (The governor) cannot constitutionally create a First Amendment exemption for protesters that he agrees with, while ignoring the First Amendment rights of Plaintiffs by enforcing his COVID-19 orders to ban on all overnight camps, without making a similar exemption for First Amendment-protected camps, such as the Jewish overnight camps.”
On June 22 the state reported 10 deaths due to the coronavirus, a point not lost on the health commissioner. “While infection rates are declining, we need to proceed with caution and take every step possible to avoid undoing all the progress New Yorkers have made in bending the curve and reopening the state safely and responsibly,” Zucker noted.
In response, the lawsuit states the governor “flatly refused to permit Jewish overnight camps from this closure order, notwithstanding the fact that those religious camps involve the exercise of First Amendment-protected religious activity of conveying Jewish values to children and have expressed their willingness to adopt health and safety protocols similar to, but even more protective than, those issued by the [s]tate for child care services and day camp programs to ensure that children and staff are protected from the transmission of COVID-19.”
“These health protocols will ensure that the overnight camps are as safe, if not safer, than the [s]tate-approved child care and day camp programs. These protocols include mandatory and recommended practices relating to protective equipment, recreational and food activities, hygiene, cleaning, and disinfection, communication and screening.”
The lawsuit against the governor is seeking a temporary restraining order, followed by a preliminary and final injunction restraining (the governor), and all those acting in concert with him, from enforcing his COVID-19 orders to close all Jewish overnight camps; a declaratory judgment that the statewide closure of all Jewish overnight camps is unconstitutional, both facially and as applied to plaintiffs; an award of costs of this litigation, including reasonable attorneys’ fees, pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1920; and an award such other and further relief as the Court may deem just and proper.
“I’m very close to the Orthodox community for many, many years,” Cuomo said on May 20 in response to a question about opening synagogues put to him by The Jewish Press. “I’m speaking to them already. I understand their issues.”