On Discrimination and Racism toward Haredim

With God's help

Makor Rishon – 2010

On the Immanuel riots: the High Court of Justice, discrimination, and the service of God

Introduction

In recent days, what among us is called, for some reason, 'public discourse' has devoted quite a bit of attention to discrimination on the basis of ethnic background in Immanuel, and in the Haredi community in general. The uproar succeeds in covering over almost all the relevant facets of the discussion, so that, to the delight of most of the parties, no real discussion takes place at all—apart from trading blows through various media. The short piece that follows is intended for readers who are willing to reconsider their position after reading, and not cling to their a priori gut feelings and the emotions seething within them.

On discrimination and racism

Discrimination is differential treatment of a person for reasons that are irrelevant, overgeneralized, and/or incorrect. For example, when a student is not admitted to a university because he is of Polish origin, there may be three different problems here:

1. Incorrect: Hidden here is an assumption that people of Polish origin are less intelligent, or study less well, than others. The first claim is that this determination is simply untrue.

2. Generalizing: Even if the collective claim about all people of Polish origin were correct (and that is certainly possible on average with regard to different groups; let us not deceive ourselves), we would still be obligated to examine the specific student himself, since it may be that he belongs to the top deciles and the most talented among those of Polish origin. The second claim is based on the fact that labeling a specific person in light of some group to which he belongs is problematic. That is a generalization.

3. Irrelevant: A third claim is that origin, or IQ, are not at all relevant criteria for admission to a university.

The first two arguments are usually presented as an alternative explanation, so as not to fall into the trap of the third fallacy. We explain that it is not because of Polish origin, but because of a substantive reason (such as ability).

In passing, let me note here that not by accident I used the term 'discrimination' rather than the term 'racism'. In all the sentences above, one can replace the term 'Polish' with more neutral terms, such as 'prone to sleep' or 'weak in history', and nothing will change. Racism is merely a particular case of discrimination, and what distinguishes it is that the irrelevant reasons for the differential/discriminatory treatment of a person are connected to his race. The identification of every case of discrimination with racism reflects the fact that this label is very convenient for us, since in that way we have automatically won the argument (as is well known, racist = Nazi).

Now let us examine the situation in which the reasons for the differential treatment are in fact relevant, correct, and not overgeneralized. In such a case, even if they refer to origin, race, or any other basis, this should not be seen as discrimination (and therefore not as 'racism'). For example, when we select candidates for a study examining the genetics of those of Moroccan descent, rejecting those of Polish descent is not racism, since it is done on the basis of a relevant criterion. If we assess candidates for a university on substantive grounds, and it turns out that the percentage of those of Polish origin who were admitted is low, this should not be seen as discrimination (at most one might consider affirmative action, but there is certainly no moral reproach here). This is a result of applying a relevant criterion.

We thus see that in order to justify not admitting the candidate to the university, even on the assumption that talent is the relevant measure for admission to a university, it is not enough to prove that the group of people of Polish origin is not talented. We must show that our specific candidate, too, is not talented enough. Certainly we cannot reject him because of his very origin, since that is an irrelevant admissions condition.

And what about a club intended for Jewish members (for example, a synagogue, at least abroad)? These are people who like to conduct their social lives only with Jews. Here too the club accepts people on the basis of criteria relevant from its own perspective, and therefore this should not be seen as discrimination. Is a Jewish school that does not accept non-Jews, or a religious school that does not accept secular students, an instance of discrimination?

If we move closer to the ethnic-racial question of origin: what would be the status of a club open only to Yiddish speakers? According to the definition above, this too should not be regarded as discrimination, since people gather there who enjoy conversation in Yiddish and Yiddish culture, and accordingly they select the members of the club. Naturally these will be only Ashkenazim, and yet this should not be seen as discrimination. However, if a Sephardi who speaks fluent Yiddish and operates within Yiddish culture were to appear there, they would have to accept him, for otherwise there would indeed be discrimination here.

And what about a club explicitly for Ashkenazim only? Here it seems more problematic, but it appears that even here this should not be regarded as discrimination. A person's taste is his own affair, whether we like it or not. Just as there can be a club intended for Jews, for people with a socialist, secular, capitalist, religious, or New Age worldview, and so on, so there can be a club for people of Ashkenazi culture. The fact that the defining feature of the club has a high correlation with origin (or race) does not necessarily mean that there is discrimination here. One may call this 'racism', and one may certainly dislike it (and perhaps even open a club for those who dislike that club), but there is no racist discrimination here.

There is no doubt that a club that decides to harm anyone who does not belong to it is illegitimate, and its actions deserve condemnation. But that is true even if the basis for membership in the club is not racial or ethnic, but any other basis as well. Therefore our concern here is with discrimination or racism expressed in the very definition of the group, when there is no real harm to other groups (apart from not accepting members from them into the club).

The conclusion that emerges from this is that a person may say that he does not like the tendency of people to associate with others on the basis of origin or race, but that is their tendency. And assuming that this is indeed their inclination, the criteria for admission to their club cannot be called racism.

It is important to clarify that the state can, of course, decline to support such clubs financially, as part of its policy of creating integration or encouraging mixing between groups. But this does not necessarily mean that there is an act here that is forbidden at the legal level, or perhaps even at the moral level.

Who is a Haredi?

Now we come to the discrimination in Immanuel, and in Haredi society in general. Let me preface this by saying that Haredi society and culture, insofar as they are such, contain many more components than the Shulchan Arukh (or Jewish law in general). There are unique cultural, linguistic, and even value-laden characteristics there. Not for nothing does every Haredi group differentiate itself even from other Haredi groups. The Slonim Hasidim want to educate the child to pray in the Slonim rite, as well as to accept absolutely the leadership of the Slonim rebbe (who determines whether and for whom to vote, what to do, how to study, what to wear, where to live, what to celebrate and when, what to eat and under which certification, and so on). The Slonim Hasidim want to educate their students to the conception that the rebbe is God's representative on earth, that his words are absolute truth, and that one should listen to him and only to him. They want the student to know all the stories of the Slonim rebbes throughout the generations, and to be educated by them as though they were absolute truth about perfect and majestic figures; to pray in the Hasidic rite with a gartel (prayer belt) and with socks of the 'correct' color and length.

How can such a group accept a student, or a member, who does not behave according to these rules? What if there were a heretic there who accepts the rulings and spiritual leadership of Rabbi Ovadia Yosef? What if this student were, God forbid, to disparage the Slonim rebbes, and perhaps even dare to claim that there may be a problem with their leadership or their spiritual stature? Not to mention prayer in the Sephardi rite, or Sephardi customs in Jewish law. I am convinced that if there is a student from a Sephardi family that accepts all the rules of the Slonim Hasidic movement, and that meets the required standards and so on, he would indeed be accepted to their institutions (at least if they are convinced of the sincerity of his intentions). I assume that in practice there are also a few Sephardi students in Slonim institutions, as well as in other Haredi institutions that I know. A considerable part of the leadership of Shas grew up in Ashkenazi institutions.

I would add that this matter is not unique specifically to the Slonim Hasidic movement. The Lithuanian group also wants to educate toward Lithuanian pronunciation, the Ashkenazi prayer rite, absolute acceptance of Rabbi Elyashiv's authority, the Lithuanian mode of study and ruling, the exemplary Lithuanian figures of the past, and so on. The same applies to every other Haredi group. What characterizes Haredism is a relation to these aspects as possessing a certain kind of holiness and absoluteness. Not for nothing does the entire Haredi world rally to the struggle of the Slonim Hasidim in Immanuel (including those whose children do not want to be accepted, and some of those who would not be accepted either, into Slonim institutions).

Let us consider two additional examples. The State of Israel was founded by people who did not want to live with non-Jews, but with members of their own people. In this sense every nation-state contains an element of ethnic discrimination, and yet most of us see this as legitimate discrimination, if indeed we see it as discrimination at all. Would secular schools gladly accept a mass of students who are Slonim Hasidim? I faithfully promise you that they would prevent their entry even by force, if necessary. Moreover, I assume that the schools of Maayan HaHinukh HaTorani would also be very unhappy to accept a mass of Slonim Hasidim, or ordinary Lithuanians, who would change the character of their school. Every institution that has a specific educational agenda fears a change in character that would be created by mixing populations that do not operate in accordance with that agenda. This is a question of dosage and of the assessment of the depth of the difference between the populations under discussion.

A distinction between two levels of discussion

In light of what has been said thus far, it seems that we must distinguish between two different levels of the discussion:

1. One may dislike this educational approach, or more generally this way of serving God. One may revolt against the conception that sees importance in pronunciation, mode of dress, culture and folklore, all-encompassing rabbinic authority, historical distortions about rabbis and rebbes as though they were solid facts, and so on.

2. And one may also argue that there is discrimination here, that is, treatment of a person according to irrelevant criteria.

The first claim is substantive, since there is a debate here about the proper way to serve God, about what is important in it and what is marginal. How we relate to someone who thinks/behaves differently from us. But assuming that this is indeed the Haredi position and the Haredi way of serving God, their criteria cannot be considered discrimination. They sort their students and their prospective sons- and daughters-in-law according to measures of pronunciation, form of dress, rabbinic leadership, gartel, pronunciation in prayer, and so on. That is what they want to educate toward, and therefore they set corresponding admissions criteria, and therefore they are also unwilling to accept students regarding whom they fear that they will 'spoil' the education they provide.

From the foregoing it follows that the argument about discrimination in Immanuel is being conducted on the wrong plane. There is no discrimination here, but sorting on the basis of criteria that are certainly relevant to the culture in question. In a Hasidic society, one who follows Rabbi Ovadia Yosef rather than the local rebbe is an educational danger. One who prays with Sephardi pronunciation is an educational danger. One who does not pray with a gartel/socks/beard of the proper color and length is an educational danger. And certainly one who uses language that is not accepted there creates a far from simple educational problem. Therefore they do not admit such members to their club, and I do not see discrimination here.

My real dispute with them is on an entirely different plane. The question relevant to the discussion here is whether this is indeed the correct way to serve God. Are the gartel, pronunciation, legumes on Passover, or even obedience to specific rabbinic leadership, criteria so important and central in the service of God? Is someone who behaves/thinks differently from me (within certain limits) such a critically dangerous educational threat? If so, then there is certainly no discrimination here, but rather very relevant sorting. And if not, then even so the problem is not discrimination, but those distorted criteria on which it is based. The argument is not about the relevance of the criteria, for relevance is a function of taste (in the case of the club), or of values (in the case of Haredi education). The argument is about the values from which these criteria are derived, that is, about the religious culture that constitutes these criteria, and sees them as relevant criteria.

I certainly join in the criticism of this flawed and distorted religious culture and conception. But that is not a claim of discrimination, but a dispute about the form of the service of God. In that dispute the governing authorities—and certainly secular systems or secular people—have no standing whatsoever. Dragging discrimination into this argument is an irrelevant diversion of it to convenient and demagogic places. The attempt to grapple with the question of the relevance of the criteria is carried out with irrelevant tools and by irrelevant standards.

It is important to clarify here that there certainly are rejections of students that are justified, and there are those that are acceptable even if they are not entirely justified. With respect to students who do not maintain norms appropriate to the institution's policy (such as foul language, or a culture of speech, dress, or leisure that is not suited to the character of the institutions), the decision not to accept them can be regarded as reasonable. A person who is unwilling to risk the education of his children (at least in his own judgment) in order to benefit other students does not deserve such unequivocal condemnation. If there are others who are willing or wish for greater openness and integration, and are also prepared to take risks for that purpose, let them be blessed. But that is not what is at issue here. The decision not to accept students into institutions for these reasons, even if they are of Sephardi origin (there is no doubt that not a few people cloak themselves in the mantle of deprivation on grounds of origin in order to attack justified rejections), is entirely acceptable. My concern here is only with the unjustified rejections, that is, those based on the gartel, skin color, rabbinic leadership, or the manner of pronunciation in prayer. My remarks above are directed at those considerations.

And what is the role of the High Court of Justice in all this?

From here I move to the position of the High Court of Justice. The High Court of Justice is supposed to intervene where there is discrimination, that is, where criteria irrelevant to the purpose of the institution are being used. The ground for intervention is a violation of the principle of equality (this is the legal treatment of discrimination). But in light of what was described above, the discussion here is not connected to the principle of equality, but to the correct way of serving God. The High Court of Justice cannot intervene in the question of 'discrimination' in Immanuel, because all of us ought to agree that the High Court of Justice cannot determine what the correct way of serving God is. The question whether to wear a gartel and in what color, foolish as it sounds, is not Edmund Levy's business, nor Elyakim Rubinstein's, nor Dorit Beinisch's. The question whether to obey the Slonim rebbe or Rabbi Ovadia, or to obey neither of them, is likewise unrelated to them. If anything, the High Court of Justice can determine that according to some criteria set by law these institutions should not be funded (if indeed they can establish this on legal grounds). But they cannot determine what the correct way of serving God is, or what the color and character of my club, or yours, will be. If so, clinging to the principle of equality is also nothing but demagoguery.

What symbolizes this more than anything else is the statement that appears in the judgment, according to which the court does not accept the standards of modesty of Rabbi Wosner's religious court. This is a legal scandal. Tomorrow morning the court will not accept my standards for Sabbath observance, or for kashrut, and will require the religious school to accept secular students, or non-Jews, or perhaps the army to serve non-kosher food. It is inconceivable that the court should see itself as authorized to make binding determinations regarding standards that depend on beliefs and opinions, however strange they may appear in its eyes, or in the eyes of anyone else (including my own, of course).

The only exception is where those standards are set ad hoc, solely in order to cover up a desire for ethnic discrimination. But to show this, the court must be convinced that Rabbi Wosner's standards, which appear in his writings, and in the writings of many other halakhic decisors, as well as in the regulations of Haredi schools, long before the event before us, are not sincere. It must be convinced that the community does not actually behave according to them in everyday life, and therefore they are intended solely to conceal a desire to discriminate on an irrelevant basis. It seems to me that it is quite clear that this is not the situation here. Suspicions regarding what lies in the hearts of the administrators cannot constitute a basis for drawing such a sweeping conclusion about their lack of sincerity. Therefore the claim of discrimination, and of inequality, is entirely unjustified in this case.

At this point it will be interesting to see the evidence (the only evidence in this judgment) that the justices present in order to indicate the existence of discrimination (1067/08, section 13):

The existence of two "tracks", which are allegedly separated only ostensibly on religious grounds, but in practice one of the "tracks" has a clear majority of girls from the "Ashkenazi" community while the others are excluded from it, and the other, the "general" – is composed almost entirely of "Sephardi" girls.

This numerical-factual argument begs the question, like similar numerical arguments that are often raised by various minorities. After all, the administration argues that Sephardi students do not meet the criteria it sets (which are derived, in its view, from the character of the school), and therefore the numerical gap between the tracks is created. And how does the High Court of Justice respond to this? By saying that the fact is that the number of Sephardi students in the Hasidic track is small relative to the Ashkenazi students. What does that prove? Either the criteria are 'tailored' to produce an Ashkenazi class, as the High Court of Justice claims, or there really is a correlation (a very surprising one, of course) between Hasidic behavior and norms and Ashkenazi-Hasidic origin, as the administration claims. So where is the proof here? Is this substantive justification unreasonable? What would we have expected? That clear Hasidic tendencies would be found specifically in the Sephardi population, more than among the Slonim Hasidim?

I would add that the conspiratorial assumption of the justices of the High Court of Justice, according to which the separation between Hasidim and others conceals a desire for separation on the basis of origin, contains within it the assumption that the Hasidim have no genuine desire to educate their students in a Hasidic education (for after all this is being done only in order to exclude the Sephardim). But here there is an ignoring of unequivocal facts. In Bnei Brak and Jerusalem as well, there is separation between Hasidic and Lithuanian schools, two distinctly Ashkenazi groups. Is there ethnic discrimination here too? Is this also done not because of the desire to provide a Hasidic/Lithuanian education? This is clear proof that this educational policy is authentic, and not merely a fig leaf for ethnic discrimination. This, of course, does not mean that it is justified, but as we saw above, the claim of ethnic discrimination must prove that the criteria are not authentic, not merely that they are not justified.

Incidentally, among the justices of the High Court of Justice themselves throughout the generations there has been very low representation of those of Mizrahi origin, much lower than their representation in the Hasidic track in Immanuel. The proof from numbers brought above is no less valid in this context. Moreover, it seems to me that any reasonable person will agree that the substantive alternative, according to which the judicial skills of those from Mizrahi communities are lower than those of Ashkenazim, appears much less plausible than the substantive justification of the administration of the school in Immanuel, according to which the Haredi-Hasidic inclination of those from Mizrahi communities is weaker than that of their Slonim Hasid peers. Is anyone surprised by that? Is it not reasonable that this is indeed the situation? So perhaps we ought to stop financial support for the High Court of Justice on grounds of discrimination?! Or perhaps the members of the Judicial Appointments Committee should be sent to prison, and heavy fines imposed on them for every day this situation continues?! Let us recall that here we are not speaking of a private club or school, but of a state institution. We have only one High Court of Justice (and that is a good thing), and those from Mizrahi communities have no option of establishing another High Court of Justice for themselves (not even with a separating wall and separate entrances). Therefore this discrimination is more severe and unjustified by far than in any other place or institution.

Incidentally, I myself know, sometimes firsthand and sometimes secondhand, quite a few cases of clear ethnic discrimination in the Haredi community. There is a teachers' seminary (for ages thirty and above) that sets a maximum quota for students of Mizrahi origin (one I know of secondhand, and I assume there are others). There it is impossible to speak of relevant criteria, since teachers at the age of thirty do not 'go bad' from associating with other teachers. Moreover, in that seminary they really did not separate Lithuanians, Hasidim, and the rest, but only set a quota for teachers of Sephardi origin. Another case, somewhat less clear-cut, is a yeshiva that sets quotas according to origin (as far as I know, this is accepted in most of the important Ashkenazi Haredi yeshivot; regarding several of them I know this personally), and does not accept students who met the admissions criteria, solely because of their origin (that is, when the number of students of Mizrahi origin exceeds the quota). Admittedly, in the second case one can appeal to the fact that they are prepared to accept different students, but in a certain dosage so as not to 'destroy' the character of the yeshiva, but usually this does not seem like a convincing argument (it is also never presented explicitly to anyone who is not an insider). All of these are good examples in which there certainly would have been room for the High Court of Justice to act (even if not in the way it was done here), since these are much clearer cases of ethnic discrimination based on irrelevant criteria. But with regard to the case of Immanuel, I have not seen real justification for the claim that this is discrimination on an irrelevant basis. On the contrary, there are several indications showing that the situation there is not such. Let us add and recall that when a court claims that discrimination exists, it must bring clear evidence of its existence, that is, it must rule out the substantive arguments and show that they are being presented ad hoc. To the best of my judgment, in the case of Immanuel this was not done (see above in the discussion of the numerical evidence).

Summary: What would Groucho Marx say about this?

The conclusion is that the relevant plane of the argument is the public-religious one, not the legal one. If there is a group that discriminates against people for reasons that seem relevant in its own eyes, this does not harm the value of equality, but other values, religious and moral ones. I oppose the distinction between Sephardim and Ashkenazim not because of discrimination, but because the differences are not really important as a measure of the service of God. Therefore this should not raise any legal problem. The correct way to deal with it is by way of society. Beginning with attempts at persuasion, and if these do not succeed, one should leave this group to itself, with its culture and its way of serving God, flawed and distorted as it may appear in our eyes.

Paraphrasing Groucho Marx, I do not want to be a member of a club that is unwilling to accept me. On the other hand, that does not mean that I should forcibly close this club, or send its members to prison. It would be better to open other, more successful clubs, which will provide a fitting alternative, and eliminate the dependent and incomprehensible need of rejected candidates to force their way, by physical or legal coercion, specifically into the club that does not want them.