Nathan Lewin and Alyza D. Lewin

Attorneys Nathan Lewin and Alyza D. Lewin got the ball rolling in the case that allowed Beren Academy of Houston to compete in a state tournament.

At about 8 p.m. on February 27, constitutional attorney Nathan Lewin was sitting half-asleep in the aisle seat of an Amtrak train speeding south from New York City to Washington, D.C. Seated next to him was his daughter and law partner Alyza Lewin.

Shortly after crossing the bridge into New Jersey, as red and green track lights blurred past, his cell phone rang. Struggling against the din of a train car filled with passengers, and the exhaustion of a tiring day in Manhattan, Lewin tried to make out what was being said on the cell phone. “You are located where?” he asked. “Did you say Texas?”

From that Monday night moment and for the next four days, a frenzy of phone calls, text messages, emails, conference calls, and voice mails were unleashed between parents and attorneys in Texas and Washington. It would all change a number of lives forever, and make headlines worldwide as an international sports drama.

Beren Jewish Academy of Houston, an Orthodox Jewish high school, fielding a superb basketball team, had battled its way to the semifinals of the Texas Association of Private and Parochial Schools. Ironically, although TAPPS was a sports league of private and religious schools, the association was determined not to honor any Sabbath, except Christian Sunday.

Moreover, the semifinal playoffs were scheduled for March 2, a Friday night, which meant that Orthodox Jewish students could not participate. TAPPS denied all requests for accommodation for Beren’s Jewish kids, refusing to move the game up just a few hours even though Covenant, the team Beren was scheduled to play, agreed to the proposed revised game time. That triggered a legal challenge in federal court, which quickly led to TAPPS reversing its decision and rescheduling the Friday night game to early Friday afternoon in time for the Beren team to play. The pumped Beren team handily won the game. Headlines raced across the country trumpeting a victory for the Beren team, for religious accommodation, for sports, and for great story lines.

Off the court

But unseen dramas swirled behind the headlines. None of the lawyers, students, or parents knew what they would do until just moments before the attorneys and plaintiffs decided at the last minute to file for a temporary restraining order. While many are still cheering the triple court victory  – in the court of law, on the basketball court, and in the court of public opinion –uncertainty among the parties remains – both among the seeming winners and the clear losers.

Perhaps the root of the problem was TAPPS itself, a closely-knit, Sunday-observing Christian basketball league invented in the late 1970s. TAPPS was unwillingly thrust into the modern world of interfaith cooperation by the controversy.

Three decades ago, the few dozen Texan Christian schools comprising TAPPS were in their closed-off world of sports, observing Sunday Sabbath, and playing on Fridays and Saturdays. Three decades later, the association has grown tenfold to between 200 to 250 schools.

But as the joys of athletic excellence spread to other Texas parochial schools, several non-Sunday Sabbath observers, such as those from the Orthodox Jewish and Seventh-day Adventist tradition, approached TAPPS to join.

Although TAPPS’s bylaws allowed for the start times of games to be moved by mutual consent of the teams playing the game, the board informed these Saturday Sabbath-observing schools that the semifinal and final rounds were nonetheless traditionally played on Friday evening and Saturday.

An uneasy competitive environment ensued. By admitting to the league but not accommodating Saturday Sabbath observers, TAPPS could cling to some semblance of its Christian and non-ecumenical identity while seeming to obey the law and not discriminate against other religions. Indeed, when asked about the essence of interfaith cooperation by TAPPS, director Edd Burleson said, “We don’t embrace all faiths. We don’t work with all faiths.”

Beren hoops it up

Both Beren and TAPPS were too comfortable in the way it has always been to imagine the way it could be. But both would reluctantly be brought into the new era.

Enter Nathan Lewin, half-asleep in that fast-moving Amtrak car hearing from a Beren parent stepping away from a wedding in Brooklyn to make the call. The parent, Etan Mirwis, explained that back home in Texas, the academy’s kids had been good enough to qualify for the semis but were being forcefully denied participation by TAPPS. Why? Because they were Jewish and the league would not change the game time. Lewin woke up.

America’s most experienced litigator on behalf of Jewish causes, often referred to as “Defender of the Tribe,” sprang into action. (The Lewins also represented Menachem Zivotofsky in his Supreme Court case. See page 1.) Honorary president of the American Association of Jewish Lawyers and Jurists, Lewin earned his reputation as an intrepid courtroom champion. He has been before the Supreme Court 28 times. Moreover, he has secured highly contested, well-publicized judgments against the government of Russia for seizing historical archives of the Jewish Chabad group, against Hamas funders in the United States for enabling terrorism, and against the U.S. Army for denying a Jewish chaplain the right to wear a beard in the military.

It was clear from emails that TAPPS and Burleson would not budge. Beren officials politely requested a schedule accommodation as did parents. High-profile letters were sent by the Anti-Defamation League, Texas Sen. John Cronyn, Houston Mayor Annise D. Parker, and sports luminaries. Pressure from growing media coverage added to the movement.

All of it only caused TAPPS and its director to hunker into angry intransigence. One demure, almost obsequious letter from Beren requesting to advance the schedule just a few hours was met with a stern and explicit email from Burleson. “This is to advise you that the TAPPS executive board has voted to deny your appeal to reschedule certain games in the state basketball tournament on March 2 and 3, 2012. The fact that your team participated in the bi-district, area and regional rounds of the playoffs, when it was not able to participate in the scheduled semifinal and finals games appears to be a violation of Section 138, C, 3, e.”

Jumping into action

From the outset, Lewin knew TAPPS and Burleson would not bend, absent a federal court order. Immediate litigation would be necessary if the TAPPS policy was to be challenged in time to reschedule the Friday night game. By sunrise on Tuesday, Lewin reached out to the seasoned litigators of a top Dallas law firm, Carrington Coleman, seeking pro bono assistance. Lewin laid out his legal strategy on the grounds of interference with religious freedom. Richard Rohan, one of Carrington’s top attorneys, by chance an Orthodox Jew himself, stepped up to the plate to help draft the complaint for a temporary restraining order.

By Wednesday afternoon, February 29, Lewin and the legal team were convinced they must file the suit that day. But who were the plaintiffs? Parents? Students? The school? What about the Seventh-day Adventists? This Christian Church, like Beren, observes Saturday Sabbath. The Seventh-day Adventists had successfully rescheduled one Saturday soccer game, but three other attempts by the Adventists over the past decade to reschedule basketball semifinal games were roundly rebuffed by TAPPS.

The stars seemed aligned for the supposed plaintiffs and their litigators. On the one side, an intransigent and unaccommodating association of religious schools; on the other side, a squad of kids with knitted yarmulkes longing for a chance to score hoops. Initially, Rohan, who was personally acquainted with many of the Beren families, thought he would be advancing the same goals that they had. Lewin assumed that the school would naturally be ready to support the action as a plaintiff. They were both wrong.

No school support

The school wanted nothing to do with the suit or the effort. Beren’s head of school Rabbi Harry Sinoff verbalized the reluctance this way: “We do value success in the modern world. But not at the expense of who we are – Shomre Shabbos (Sabbath observant).” Sinoff added a phrase right out of Jewish history stating, “This is about asking nicely, not about demanding a right. No demand.”

The entire case was stopped dead in its tracks. Rohan wondered if he could go ahead. “My concern was bringing upon Beren potentially negative hostile publicity. For me, this was personal. I would not have felt good about being a catalyst for that. I had a personal conundrum. But other attorneys here at the firm did NOT have a personal involvement. So the question was: Should I be the lead attorney?”

Thursday morning, March 1, before work, Lewin was praying at a New York City synagogue, where he discussed the case with other congregants who had already heard about the uproar in The New York Times and on Fox News. They all encouraged Lewin to press ahead. One congregant told Lewin, “The whole world favors the students, except their school.”

As the sun rose that Thursday morning, Rohan had indeed slept on it and now was certain the lawsuit had to be launched. He found another attorney in the firm to take the lead position. Rohan’s name would be listed, but second. The finishing touches on the lawsuit asking for a temporary restraining order, a TRO, were cobbled together by the Lewins, Rohan, and others.

At 8:19 a.m. in Washington, D.C. – an hour earlier in Texas – Lewin used one finger to punch out a terse email to the entire legal team. Subject: Fire When Ready.

Shortly thereafter, Rohan’s office pressed the button on the keyboard and electronically filed with the federal court, asking for an immediate hearing later that day to compel TAPPS to reschedule.

Taps for TAPPS

Lewin was right. Within two hours, before the parties even had the chance to appear before a judge, TAPPS backed down. Burleson issued a public statement agreeing to bend even before any TRO was issued. The game was rescheduled from Friday night to Friday afternoon.

By the end of that Thursday, March 1, Burleson seemed completely dejected by the reversal. In a phone interview at the end of a tumultuous day, Burleson stated, “I have found out over the past three days that anything is possible.”

Asked if this episode had created permanent bad blood, Burleson replied, “I won’t speculate on that. But,” he added, “this has been a very uncomfortable experience for me as an individual. It will remain with me a long time.”

Taking the court

The next day, a pumped-up Beren basketball team hit the court running. They won the playoff and the right to play in the championship game the next night after the Jewish Sabbath. The next night, the Beren team lost the championship by two baskets. But they won the greater battle by a generation. Some 1,700 people around the world watched the game, streamed live over the Internet.

But perhaps things were indeed changing in Texas. During the game, the plaintiff parents approached Burleson with goodwill and extended their hands. Now it was about basketball. Just basketball. They reported that Burleson seemed to be smiling.

Edwin Black is the author of “IBM and the Holocaust” and other books.

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