CASE STUDIES IN BUSINESS ETHICS
Rabbi Jay Kelman CA
The Apeal of a Teacher

Issues of church and state, especially in the United States with its constitutional separation of these two realms, are always controversial, often fascinating and at times trailblazing.

As briefly reported in this newspaper (August 20) a fascinating case is set to be heard by the New York State Appellate Court. At issue is the degree, if any, to which the secular courts may intervene in rulings of a beit din (religious court). The impetus for what could well be a precedent setting case affecting all rulings, in fact the functioning, of batei din throughout the United States is the ruling by a New York state lower court overturning a decision of the Beit Din of America (in my mind the pre eminent rabbinical court in North America) in the case of Brisman vs HAFTR.

In that case a teacher who was let go over "philosophical differences" and his ex-employer signed a binding arbitration agreement to have their case of "wrongful dismissal" heard by the Beit Din of America. The beit din ruled in favor of the rabbi and ordered the school to reinstate him with back pay (and tenure). To their credit the school, though unhappy with the ruling, did reinstate him and did not contest the ruling in the courts.

Interestingly it was the teacher himself who sought to have the arbitration award confirmed by the court - a move that his lawyer explained was due to the fact that "under New York law if an arbitration award is not confirmed within a year, it loses its validity" and hence if the school later choose to ignore the ruling of the beit din there would have been no method of enforceability. The court in overturning the decision of the beit din labeled it irrational and one that "clearly exceeds the arbitrators' power and is violative of public policy. is counterproductive to a harmonious and productive work environment."

It hardly needs to be stated that the implications of this case are far reaching and it is not surprising that the Orthodox Union, Agudat Israel of America and Torah Umesora have joined to file a brief to the court. As they make clear they are not taking sides in the underlying dispute but rather are seeking to ensure the independent authority and validity of rulings of the beit din system.

In reading about this case a number of thoughts come to mind. The case itself presents us with two conflicting, perhaps irreconcilable values. A school must have the right to make personnel decisions. This is especially so when one considers that while our secular public schools strive to be value neutral (whatever that means) for Jewish schools underlying values are at the core of our mission; one can not gloss over "philosophical differences". Yet to fire some one who has done no wrong and whose philosophical outlook was apparently known when he was hired seems unfair and harsh.

Schools today, unlike even 15 years ago, have the luxury of being able to hire those teachers who reflect their philosophical outlook leaving the difficult question of what to do with those who were hired when in a time when it was often impossible to find teachers who reflected the ideological outlook of the school.

The case highlights the sad fact that our communal infrastructure has not matured to the point where we have a fully functioning beit din system, including an appeals mechanism that is recognized and accepted by all. Only by having the best of our legal minds and moral integrity involved in often difficult and uncomfortable work of settling disputes will the situation begin to change demonstrating the relevance of Jewish law to the real world in which we live.

Comments to rabbijay@torahinmotion.org