Yesterday, testemony was delivered to the NYC Health Dept by Morton Avigdor, ESQ, Rabbi Chaim Dovid Zweibel of Agudath Israel, Rabbi Niederman, and the Catholic Church about an issue which is not well known in NYC. YW had an article on March 8th (HERE) titled “NYC: Day care centers will now require license”. YW has been informed, that the issue is much greater – in that Yeshivos would be regulated for the first time in NYC history. A very dangerous precedent. The following is the testimony delivered to the NYC Health Department by Morton M. Avigdor Esq.
Commissioner Frieden, Distinguished Members of the New York City Board of Health, good morning.
My name is Morton Avigdor. I am an attorney in private practice in New York City. From 1986 to 2000 I had the distinction of serving for 14 years as the Chairperson of the Subcommittee of Health on behalf of the Committee of Nonpublic School Officials for the City of New York and acted as liaison to the Department of Health. I have also practiced extensively in front of the New York City Department of Health Tribunal defending numerous parochial schools on actions brought by the Department. I stand here today to testify in opposition to the proposed rules amending article 47 of the New York City Health Code. These proposals do not make children safer.
UNCONSTITUTIONAL
These amendments present the most egregious entanglement between Church entities and the State that I have ever seen. It is frightening from a First Amendment perspective to see this Department attempt to regulate the personnel of a pervasively religious organization. To require a permit for a core religious activity performed by a religious organization is offensive to the Wall that separates Church and State.
I don’t take the position that the Department of Health could never regulate if children were in physical danger or in harms way… but over the approximately 200 years that parochial schools have formally operated in New York State that has not been the case. To my knowledge, there has been no blatant transgression perpetrated by non-accredited or non-registered teachers in the parochial school preschool system that rises to the occasion necessitating correction with such onerous regulation. That you could regulate does not mean that you should regulate. Once government perceives their ability to so freely curb the first phrase of the First Amendment’s guarantee of free exercise of religion, will government feel equally comfortable regulating the second part of the First Amendment’s guarantee of a free press, the right to congregate or to free speech? Nothing has happened that compels this council to abridge rights guaranteed under the Constitution.
UNFAIR and UNFUNDED
I find it difficult to justify the department’s present willingness to fund inspectors, enforcement mechanisms and the development of new regulations for parochial schools when a couple years ago the Department claimed poverty in providing funds for full and part-time New York City Department of Health nurses for parochial schools that requested them.
UNEQUAL ENFORCEMENT and APPLICATION
Why are these regulations directed only at parochial school children? Public-school children are just as vulnerable to the vicissitudes you seek to prevent for nonpublic school children. The notion that parochial schools would be subject to fines, violations and potential closure while the public schools would not, would be an unequal application and enforcement of the law.
UNWISE and UNSAFE PUBLIC POLICY
Abolishing NPR status when these schools are safe and reliable providers of Pre-School education is unwise. These are schools, after all, that provide education from Pre-School through High School.
The public policy implications for demanding the increased square footage per child is potentially disastrous in its’ practical application. Church related and religious schools have traditionally been a haven for the poor. These new requirements, without any help from government to pay for them, are unfunded mandates that will close the door to affordable childcare for the indigent. Those most needy children are placed in harms way by this proposed regulation because they will be without affordable supervised care.
UNFORGIVABLE
Approximately 2 years ago I represented a religious organization running a school program that was padlocked by the Department of Health on a Friday morning. In the Department’s wisdom they sent the children back to their homes where many parents had already gone to work. Panic and havoc ensued. There was no imminent threat to the health of these children (they were closed on a paperwork issue) but the Department put them in harm’s way with their reckless act. You attempt to do the same today with these regulations by restricting affordable Day Care settings for the poor. The closure story doesn’t end with that Friday morning. After months of defending the religious organization before the administrative law court the Administrative Law Judge vindicated my client and the violations were dismissed. Aside from the considerable cost and time spent in defending the action, the damage to the school’s reputation was done and a severe abridgment of their First Amendment rights was perpetrated. My client received no apologies or regrets from this Department. That constitutional infringement was unforgivable and unforgettable. This Department callously abused its’ discretion as it applies to religious free exercise rights. Sadly, this Department does not have the confidence or trust of the religious school or faith community.
The issues I present today are serious and require much further debate, consultation and deliberation. I urge this council to postpone adopting these damaging regulations until such time as these troubling problems are studied, considered and addressed.
Respectfully submitted,
Morton Avigdor, Esq.
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17 Responses
What are the prospects of this proposal being enacted?
This situation needs to be followed. It is a good thing that Agudah is actively fighting this. I hope that they are not the only ones.
the entire article may be too long to read, but this important issue must be addressed. i remember being in avery neat and clean yeshiva. but not all yeshivos were like that then. boruch hashem today things are much better, as my rosh yeshiva says you have to look at everything with ‘clean’ glasses
This is another reason why we should stay as far away as possible from the right-wing Christians bloc (ie the Bush administration). The ACLU could not have said it any better.
does this have anything to do with camp agudah?
and by the way i know this guy Avigdor very well
OK. Am I missing something?
Why is it bad if the CIty Dept of Health regulates the safty and health standards at our Yeshivos? We all know to well that the Yeshivos themselves don’t follow many regulations.
Should we also say the fire and building codes shouldn’t apply to shuls and Yeshivos?
How is the a problem?
If our Yeshivos are afraid to let inspectors or the gov’t into our Yeshivos, then I , as a parent, would want the inspectors twice as much.
BORUCH HASHEM FOR THE AGUDATH YISROEL OF AMERICA, AS THEY KNOW HOW TO HANDLE A SITUATION LIKE THIS. IT WOULD BE DETRIMENTAL TO HAVE THE HEALTH DEPT CONTROL THE YESHIVA’S.
WITH SIYATA DISHMAYA, WE WILL PREVAIL AND THE AGUDAH WILL HAVE THIS POTENTIAL LAW RESCINDED..
LOOK WHAT THE HEALTH DEPT WANTED US TO DO ABOUT BRISSIM . THEY WANT TO CONTROL US BUT WE CANNOT LET THEM DO THAT.
A GUTTEN SHABBOS TO ALL
Why is everyone opposing making schools healthier?
rj: How do you see the Right wing crowd to be the bad guys and the ACLU to be the good guys in this story? NYC Health department sits on the LEFT of the political world. The Bush administration isn’t enforcing anything here, and the Catholics are on the side of the Yeshivos, according to my reading of it. There may be more to the story that can not be directly inferred from Mordechai Avigdor’s testimony.
woz, chayim yankel, others: from the excerpt above you can’t really tell what the issue is. it is common for lawyers to expand issues for the sake of making convincing arguments. this has nothing to do with yeshivos and cleanliness. it is about requiring religious day care centers to have a license.
midwesterner – I didn’t pass judegment on who is right or wrong in this story – my point was that the Agudah lawyer was making an argument which has historically been made by the ACLU. The Charedi world can not on the one hand support the Bush administration and on the other make the argument of seperation of church and state.
The NYC Health Dept doesn’t sit on the left or right – they are a health department. Is being healthy (anti-smoking, trans fats and other harmful practces) a “left wing” concept?
bupkiss, and what’s wrong with that?
rj, you are confused. The Christian right would support the Agudah’s position, while the ACLU would oppose the Agudah’s position here.
the fair thing would be if ‘no taxes w/o representation’ they must fund a school to get a say. but only in generic non sectarian fashion….
RJ: several points of response:
1. The separation of church and state argument, while frequently cited by the ACLU, is not exclusively a left wing argument. In truth, there is no provision in the Constitution for separation of church and state. All there is, is the “Establishment Clause” which prohibits the government from establishing a religion. This has been interpreted by (liberal) Supreme courts to grow into a full separation of Church from state. The Aguda’s argument is that the government should not get involved in regulating religious activity. To quote Mordechai Avigdor, “It is frightening from a First Amendment perspective to see this Department attempt to regulate the personnel of a pervasively religious organization. To require a permit for a core religious activity performed by a religious organization is offensive to the Wall that separates Church and State.” This is not the separation argument that the ACLU regularly makes, but rather to the core of the original intent of the 1st amendment.
2. The Bush administration does not seek, nor is there any reason to believe that they intend to, (nor with the current congress, would they be able to) impose religion on anyone. It has always been Aguda’s position, as directed by their gedolim, to support those who have a speck or 2 of religion in them. It helps to elevate the moral environment of the country when its leaders have a little “”fear of G-d” in them. I remember, as a young bochur in the 80s, following debates in the Jewish Observer, and at sessions of the Aguda Conventions, about school prayer. The Aguda’s position was generally pro school prayer. In my youth, I did not understand this. Why are we promoting people to pray, and to whom are they praying? Later I understood the moral decay of society and its connection to secularism.
3. It is actually the Evangelical Texan in G Bush that leads him to be one of the strongest friends of Israel that we have ever had in the White House, all the more important it is now, when our European “friends” (British, French and others) are abandoning us like a hot potato.
4. The NYC Health Department, by licensing and over-regulating these activities, is acting in an inherently liberal manner. In this country, (you obviously aren’t posting from here, as your response is time stamped in the middle of Shabbos everywhere in the US) all big city departments such as these, (and there aren’t any cities here bigger than NYC) come from a far left perspective. Yes, health issues as you mention are not left wing ideas. But having a government agency licensing, regulating, and forcing them on the general populace, is part and parcel of the agenda of the left wing of the political spectrum today.
I’m Sorry RJ, I looked at it again, and I saw that your message was time stamped Friday afternoon, not Shabbos afternoon. I just didn’t see it before Shabbos, so I assumed you were posting from Israel or Europe. It’s obvious that you are here in America, because the time stamp was Shabbos everywhere in the Eastern hemisphere.
(TO YW Editor: if you decide not to post this message, could you at least forward it to RJ’s email please? Thanx. Yeyasher cheileich l’oraisa)
I can’t say that I am for or against. On the one hand, this mayor is a self-hating Jew. This may be a way for him to intimidate us. On the other hand, look at all of the shigella cases and hepatitis cases. I am willing to keep an open mind and listen to the gedolim on this. The Agudah is not the only ones who have an opinion that is Da’as Torah.