Judge Versus Rabbis

As more and more “black-hat” Jews flocked into the Five Towns in recent years, the Hebrew Academy of the Five Towns and Rockaway in Lawrence found itself at a crossroads. The highly regarded Modern Orthodox day school, with a middle-of-the-road philosophy that mixes tradition with modernity, was now a fish out of water, so to speak — a left-leaning institution in an area quickly moving to the right religiously.
“We were a community school, being everything to everybody” when the school opened in 1978, said Rabbi David Leibtag, the head of school at HAFTR for nursery through the eighth grades. But as the Five Towns gradually attracted more and more “right-wing” Jews, the newcomers opened their own day schools that were to the right of HAFTR. To stay viable, HAFTR has in recent years tried to solidify its position as a Modern Orthodox yeshiva, espousing a philosophy similar to that of Yeshiva University.

“To develop the school, you need faculty members who live and breathe that philosophy,” Rabbi Leibtag said.

Caught in the ideological crosshairs was a tenured teacher, Neil Brisman, who had taught philosophy at the school since 1991. He was told the school would not renew his contract when it expired at the end of the school year in 2006. Brisman was apparently too religious for HAFTR.

When his contract expired, Brisman took the yeshiva to the Beth Din of America, a Jewish religious court, and asked that the court’s three rabbis reinstate him. They did on July 10, 2007. But in a highly unusual move, State Supreme Court Justice Bruce Balter in Brooklyn last month overturned the ruling, calling it “irrational.”

Brisman’s lawyer, Marvin Neiman, said this week that he plans to appeal Balter’s decision to the Appellate Division of State Supreme Court. He said he had also advised his client not to speak with the press.
At stake in this dispute is the right of a private institution to control its ideological purity and hire and fire those it wishes. And it raises questions about the future of batei din to decide issues of Jewish religious law.
Rabbi Hershel Billet, a former president of the Orthodox movement’s Rabbinical Council of America, of which the Beth Din of America is affiliated, said the case serves to “highlight the struggle” between day schools and their teachers and which is the best venue for resolving conflicts.
“Should they use the bet din or another venue?” he asked.

In addition, Rabbi Billet suggested, there may be more conflicts between teachers and day schools in the future as the recession causes schools to look for ways of belt tightening while teachers want to continue receiving decent wages.

In its ruling, the bet din’s three judges — Rabbis Mordechai Willig, Ronald Warburg and Steven Pruzansky — directed that HAFTR reinstate Brisman, restore his tenure status and pay him an annual salary of $100,000 (including overtime and all supplements for additional duties).

Neiman said the only reason he went to state court to legally enforce the decision was because “under New York law if an arbitration award is not confirmed within a year, it loses its validity.” Had they not sought a state judicial ruling and HAFTR later disregarded the decision, Neiman said he would have been forced to convene another bet din.

He said state courts routinely rubber stamp arbitration decisions and that “we were shocked they [HAFTR] even opposed” his request that Balter affirm the bet din’s decision.
Lawrence Raful, dean of the Touro Law Center in Central Islip, L.I., agreed that “judges usually stay out” of arbitration cases.

“They normally run away from bet din decisions,” he said. “Sometimes judges find the wall between church and state even when it’s not there. They will say it is a religious issue and that they can’t do anything about it. But it’s not always so and it was good that a judge was at least willing to look at it. … It was a fairly gutsy thing to do.”

Neiman questioned how Balter could have called the bet din’s ruling “irrational,” because it did not explain its decision.

He might have been referring to the bet din’s ruling that the yeshiva pay Brisman a salary of $100,000, when his base salary had been $54,000. But Neiman explained that the yeshiva had promised to allow Brisman to work a guaranteed 50 hours a week instead of the normal 25 because he has “seven or eight kids” and could not afford to work only a 25-hour work week.

“He had told the school when he was there in his third or fourth year there that he could not afford to live on that salary,” Neiman said. “Since he was their star teacher, they gave him a double shift. He was getting $118,000 at the time he was let go, plus health insurance and a pension.”

Thus, Neiman said, the bet din’s decision to award Brisman $100,000 a year was actually a cut in his salary.
“It was a compromise decision,” Neiman said. “Nobody was happy with it.”
The attorneys for HAFTR said they were not permitted by their client to discuss the case.
Neiman said the reason the school did not renew Brisman’s contract was because “he wears a black hat and has a beard. In their mind, he presented the ‘right’ mode, but he claims he was very careful” in what he taught.

The yeshiva also let go four or five other faculty members for the same reason, Neiman said. But unlike Brisman, they did not have tenure and therefore did not sue.
At the bet din, Neiman said, the school said it did not renew Brisman’s contract because “they thought he did not make a bracha [blessing] when reciting Hallel” [a prayer of thanksgiving] on Israeli Independence Day. They believed you needed to say the prayer with a bracha. The bet din said that was ridiculous, that you don’t destroy a man’s livelihood over that. The bet din was outraged by what they did. … You can understand why the bet din was so upset.”

But in his ruling, Balter said he found that the bet din’s decision “clearly exceeds the arbitrators’ power and is violative of public policy. Furthermore, the court finds that, pursuant to the terms of the arbitration agreement,” the bet din’s jurisdiction expired last August.

The court thus nullified the bet din’s decision to retain indefinite jurisdiction over the case,
The judge pointed out also that Brisman, who Neiman said is in his 50s and started working at HAFTR in 1991, had a contract that expired at the end of the 2005-2006 school year. As a result, he ruled, all of the contract’s provisions — including that of tenure — ended. For the bet din to now order tenure reinstated and to direct HAFTR to pay him $100,000 annually when his base salary had been $54,000 is “burdensome, unrealistic and wholly irrational,” Balter ruled.

Neiman said he plans to appeal the judge’s decision in part because “the legal community is up in arms and thinks this ruling is a major aberration and must be appealed.”

Although attorneys for HAFTR declined comment, the judge’s decision largely reflected the arguments they made in their court papers. They contended that the bet din had “effectively created a new contract between the parties” because Brisman no longer had a contract with the yeshiva. And they said the bet din included provisions “that never existed,” which made the award “irrational.”

The attorney for the yeshiva, Brian Sher of the law firm Kaufman Borgeest & Ryan in Manhattan, argued also in his court papers that Neiman was wrong for asserting that Balter could not legally review “awards rendered by Jewish courts” that are based on Jewish law.

“Bet Din awards, just like awards rendered by other arbitration bodies, are within the scope of this court’s power to review,” Sher wrote.

He noted that the yeshiva complied with the ruling of the bet din but believes the “award was so imperfect and irrational that the court must vacate it, or, in the alternative, modify it.”
“The [bet din] forced the school, an ‘at-will’ private employer, to continue employing an individual, who in the school’s professional judgment is not fit to teach at HAFTR,” he wrote. “Furthermore, the bet din’s ruling sets a dangerous and chilling precedent that will impact the ability of private employers to make and enforce routine employment decisions. … The bet din improperly acted as an ‘uber-employer,’ substituting its judgment for HAFTR’s.”

Balter agreed and pointed out that the $100,000 salary the bet din ordered the yeshiva to pay Brisman was “exceedingly greater than petitioner’s co-workers [and] is counterproductive to a harmonious and productive work environment.”