Judge Posner, who is the son of Jewish parents, is getting some heat regarding a recent 7th circuit decision in Lubavitch-Chabad of Illinois, Inc. v. Nw. Univ., 772 F.3d 443 (7th Cir. 2014) where the court determined that Northwestern University’s decision to disaffiliate with the Tannenbaum Chabad House, the jewish center on campus, was not a discriminatory practice on the part of the school.
In 2001, Northwestern University discovered that there were many cases of underage students vomiting after the excessive consumption of alcoholic beverages at a party at the Tannenbaum Chabad House, a center which is considered the “home away from home” for Jewish students at Northwestern University. In fact, one of the students ended up hospitalized after the event. Subsequent to this event, Northwestern University’s chaplain met with Rabbi Klein, who was running the Chabad House at the time, and “emphasized to him the need to control the consumption of alcohol at his Chabad house.” Lubavitch-Chabad of Illinois, Inc, 772 F.3d at 445.
Then in 2005, there was a dinner to celebrate the bah mitzvah of Rabbi Kleins sons and once again alcohol was served, not only wine but hard liquor as well, even though Rabbi Klein had assured the university officials that no alcohol would be served. Rabbi Klein apologized for the incident, nonetheless alcohol continued to be served by the center to students on Jewish holidays and Friday evenings, which is considered the Jewish Sabbath. It is also noted that Rabbi Klein made no limit to alcohol consumption and often drank with the students.
Then another Rabbi whose son was a graduate of Northwestern University complained about the drinking at the Chabad house and the chaplain relayed the complaint to the University’s student affairs office. An investigation was subsequently conducted and it was decided and relayed to Rabbi Klein that if he was not replaced as the head of the Chabad House, then the University would terminate its affiliation with the house.
While serving as the Rabbi of the school, Northwestern University also paid a company called Sodexo to provide food for its students and Sodexo agreed with Chabad to pay Klein for rabbinic supervision of the company’s provision of kosher food to Northwestern and then Northwestern reimbursed Sodexo for the payments to Klein. After the disaffiliation of the center, the Rabbi and Chabad house were barred from contracting with Sodexo.
The Religious center and the Rabbi then brought this suit alleging that the disaffiliation and the resulting cancellation of the contract with Sodexo were motivated by Semitism and therefore violated the antidiscrimination statute 42 U.S.C. section 1981 which states that “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” 42 U.S.C.A. § 1981 (West)
The Rabbi maintained that Northwestern violated his constitutional rights since he was serving moderate amounts of alcohol in compliance with the Illinois state law permitting serving alcohol to minors in the performance of a religious ceremony or service. Judge Posner however wasn’t buying this argument and said, “As far as we’ve been able to determine, plying minors with hard liquor is not required by any Jewish religious observance. It’s true that according to some adherents of Chabad Lubavitch “it is a mitzvah [a divine command] to drink, and drink to excess, on Purim”. Lubavitch-Chabad of Illinois, Inc, 772 F.3d at 445.
The court seemed to feel that the University had a legitimate non-discriminatory reason in deciding to disaffiliate with the Chabad House, as serving alcohol to minors is against the law and the University policy. Critics of the case aren’t fond of Judge Posner’s decision for several reasons. First, many don’t support his references to Google and Wikipedia articles to define different aspects of the Jewish culture. However, as we discussed in the April 18 post “Posner and His Internet Swag”, Posner oftentimes refers back to Internet websites in many opinions, a unique tactic on his part as we have seen. According to a New York Times article, Posner claims “Wikipedia is a terrific resource…It wouldn’t be right to use it in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.” Judge Posner’s reasoning is very understandable as he does recognize the need to use proper discretion when citing back to Internet sources and does not support using it on critical issues, where Wikipedia and other Internet sources may not be as reliable. In this case Judge Posner’s use of Internet sources is warranted as he uses it to cite back to Jewish definitions that are important to understand who the parties are and what Chabad is. The additional websites he uses are also credible as they are focused on the general Chabad practices, which are important to understand in this case. None of these Internet sources are used to refute his claim of discrimination but rather these sources give relevant background information and knowledge on the subject for those not accustomed to Jewish practices. A perfectly reasonable use of the websites.
Critics also argue that Judge Posner should not be opining on the religious views on drinking and rather should focus on the constitutional issues at hand. This argument is not supported by the ruling because Judge Posner makes it clear that the main issue is whether or not discrimination took place, and there was not sufficient evidence to prove a discriminatory practice. The insights regarding the Jewish culture were essential for one to understand why the Rabbi felt justified in providing alcohol to the students and allowed the judges to adequately determine if the Rabbi was acting rationally and in good faith under this religious belief or taking the religious belief too far.
Ultimately, what it comes down to is that first the statute he cited also has no mention of religious discrimination. Even if he was able to establish that discrimination had occurred to prove a constitutional violation, there was overwhelming evidence that the University had a legitimate reason to disassociate with the Rabbi and the Chabad Center to refute any claim of discrimination. No discriminatory conduct was made on their behalf. First, the court noted that there were many Jews in the schools student body, faculty, and administration. Secondly, Posner stressed the fact that the Rabbi was merely conducting the same conduct over and over, after years of warnings, thinking he was invincible. Posner notes,
“As is apparent from the Klein video that we cited at the outset of this opinion, Rabbi Klein is lively, engaging, eminently approachable, enthusiastic, and one might even say charismatic. Were he more responsible concerning underage and excessive drinking by the kids who frequent the Chabad house, the university would have maintained its affiliation with the house. Klein says that the university should have told him to exercise closer supervision over alcohol consumption at the house, as a condition for retaining the affiliation, and that had the university done this he would have complied. In other words, he wants a second chance. But he admits that he never asked for that second chance. He had gotten away for more than a quarter of a century with an irresponsible attitude toward excessive underage drinking that went on under his nose in the Chabad house, and seems to have thought that he could continue to do so, with impunity, indefinitely. He was given multiple chances. He was warned repeatedly, but did not react. Why should he be given fourth and fifth and nth chances? Had he stepped forward on his own initiative and promised to mend his ways, the Tannenbaum Chabad House might still be a Northwestern University affiliate.” Lubavitch-Chabad of Illinois, Inc, 772 F.3d at 447-48.
The Rabbi was given numerous chances to control the alcohol consumption but did not do so. He was taking advantage of his role and stretching the rule allowing alcohol consumption to minors celebrating religious events. He took advantage of the numerous chances he was given and failed to address the universities concerns. Because of his failure to comply with the schools wishes, the school had a legitimate nondiscriminatory reason to disaffiliate with the Tannenbaum Chabad House.