MA Appellate Court rules in favor of the New England Hebrew Academy

On May 18, 2005 Massachusetts Appellate Court ruled against Dr. Marc Oster vs. New England Hebrew Academy & others, (see our previous post and commenting discussion about this case).

Today we publish this publicly available ruling - PDF. This is a stunning decision with a long term consequences for Jewish schools. Highlights of the ruling:

Religious organizations "are entitled to autonomy 'over church disputes touching on matters of doctrine, canon law, polity, discipline and ministerial relationships.'"

References to court cases against dioceses, etc. follow. The judges chose to equate a school with a religious organization and people managing the school with representatives of a religion. Subsequently all the referenced cases are a pure church disputes. It is unclear why this school case was approached with the same arguments. The ruling continues:

As a result of Oster's attempts to call a meeting, one which seemingly has never been held in the past, a conflict arose within the organization raising the question of whether the corporate by-laws controlled or whether the Academy's leaders controlled. The determination of this question unavoidably raises questions of religious doctrine which civil courts are unable to resolve. Stated another way, Oster's interpretation of the problem as strictly secular attempts to overlook the inherent tension between what is effectively a statutory requirement (compliance with corporate by-laws) and a fundamental constitutional prohibition (free exercise of religion). In a conflict between a statutory requirement and the free exercise of religion, the statute must yield.

In an amazing swoop the court declared that governing by-laws by which the nonprofit organization have been incorporated do not matter, they are "statutory requirement" only, and the choice given to the religious school to ignore the by-laws as a matter of "free exercise of religion". Barabum-Barabam, Holley Molley!!! (file this under supra-rational please) The judges continue:

In this instance, if we were to require adherence to a set of "secular" by-laws, it would undoubtedly raise the possibility, if not the probability, that the basic tenets of the Lubavitcher movement would be subordinated to the requirements of corporate law. We are in no position to make such a determination. So an annual meeting to give representation to parents who�s primary objective is quality religious, specifically Lubavitch education for their children is against the �basic tenets of the Lubavitcher movement�? The decision continues: The thrust of Oster's argument is founded in public policy: if we do not compel the Academy to comply with its statutory by-laws, members and their "contractual right to rely upon such bylaws" are left unprotected, which "would leave all religious organizations dangerously vulnerable to deleterious takeovers by rogue leaders." In essence, he equates the Academy with any other nonprofit organization in which the directors owe a fiduciary duty to the organization, and for which the law provides a grievance mechanism for members to ensure that the directors are acting in accordance with the best interests of the organization. This argument misses the point in this case: the only parties who are qualified to determine whether the leadership of a religious organization is acting in the best interests of that organization are the leaders themselves, not the courts. The best interests of a secular nonprofit corporation, on the other hand, are not embedded in religious faith and doctrine, and are therefore ascertainable by the civil courts.

G-d Bless the Peoples Republic of Massachusetts! Not only the court concludes that the school is not bound by the statutory by-laws of a nonprofit organization but it states that potential "rogue leaders" are the only parties who are qualified to determine what is the best interest of a religious organization. And these leaders remain in essence above "fiduciary duty to the organization"? I am getting dizzy. Who are the leaders of Lubavitch today? Particularly in light of the fact that we already established that even 15 years ago this was not a question with a simple answer. (see was the Lubavitcher Rebbe a closet Kotzker?). Did Massachusetts Appellate Court just endorsed nepotism as we know it in the Lubavitch institutions of New England and beyond? Wasn�t the point of Berke Gourary case that the leader, the Rebbe himself owns nothing and it all belongs to Chasidim?

We hope the Dr. Oster finds his courage to follow through to the Federal Supreme Court. But it seems that the court is reluctant or uninformed about the nuances of the conflict. Indeed the courts prefer not to rule against a party that is perceived to represent a religion in a dispute. It is reasonable to conclude that there will be no judiciary relief for the parents.

Inevitably one hears an argument that the information about this case should not be leaked to the public to portray Lubavitch in a bad light. We disagree indeed glasnost does not negate the ideals of the movement. Simply put the highest goal of the Lubavitcher Rebbe was Jewish education. Today we witness how Batey Din and now Courts refuse to intervene on the side of the parents. In order to break the logjam on the path chartered by the Lubavitcher Rebbe the only remaining alternative is glasnost.

Many institutions are in possession of an appreciated real estate and substantial funds. It�s safe to assume that in 9 out of 10 cases the funds are raised in the name of Jewish Education. Therefore it would be logical to conclude that the "leaders" who are entrusted with the funds have a "fiduciary responsibly" to the Jewish people in addition to their own families or even to the �basic tenets of the Lubavitcher movement� to use the courts language.

Finally to paraphrase Roger Rosenblatt the following situation will present itself to you over and over: There is a friend, a relative, a colleague who will ask you in the name of unity to revive organization with 40 year track record of failure. This person will tell you that if you rationally convince a "leader" to implement a commons sense policy "A", followed by a commons sense policy "B", this "leader" will appreciate your input and will be forever grateful to you for your contribution. We implore you: forgetaboutit. When the muse of pseudo unity whispers in your ear, swat it, take a long walk, a cold shower, and clear your head. There has not been one person in history that voluntarily reformed or changed when challenged for a 0.0001% of his power. The only rational course of action is glasnost and competition and to use the court�s language glasnost and competition are "consonant with the highest ideals of American citizenship" and today it is the key to the advancement of the "basic tenets of the Lubavitcher movement".