Public High School Complaining About Off-Campus Proselytizing (During Lunch Hour)

[UPDATE: A week later, the principal said he had erred, and apologized.]

Here’s a letter from the principal of Great Neck North High School, on Long Island:

January 31, 2013

We write this letter to inform you of a situation in our community about which we have deep concerns. There is a store front temple that serves kids free food and then while they are eating, preaches to them. They only permit Jewish kids to enter. They separate boys from girls. Girls are offered free food and religious instruction Tuesdays from 11:00 a.m. to 1:00 p.m. and boys are offered free food and religious instruction on Thursday and Friday from 11:00 a.m. to 1:00 p.m.

As you know we have an open campus and students are allowed to leave campus on their free periods or lunch periods to walk to town and get lunch. They are not allowed to drive so their choices are constrained to the immediate general area. The Torah Ohr Temple at 575 Middle Neck Road believes it is perfectly okay for them to entice our students with free lunch in order to give them orthodox religious instruction, or what many would frankly call proselytizing children. We don’t agree. We have consulted many other local clergy, and they don’t agree with the practice either. These are children, not adults.

Upon hearing about the situation, we visited the Temple ourselves. The visit was unsettling. There were at least several dozen of our students sitting at long tables in a room that had to be entered through a side door. They were quietly eating while a man was instructing them in orthodox religious beliefs. There is no sign on the building even identifying it as a Temple.

We entered into conversations with Rabbi Kohan, the man in charge who clearly believes that what he is doing is perfectly okay. He is sincere and sure in his belief system and, while he says he wants to “cooperate,” so far he is unwilling to take the simple steps that we have asked him to take which is simply to create with us parent permission slips and notification so that we are sure that parents understand and approve of their children attending religious instruction during the school day, religious instruction that is in no way at all supervised or approved by the Great Neck Public Schools or by anyone close in supervisory authority other than this Rabbi and his Temple.

At first the Rabbi agreed to set up a permission letter with us but then called and said he had to consult with lawyers. We asked him to desist in his lunches and lectures until the matter is settled. He refused.

We have contacted the police and the local authorities who up to now say that there is nothing they can do. We have discussed the matter with our P.T.S.A. leadership and concerned parents. We are contemplating further steps and actions, but at this point thought it important to inform all of you of the situation.

We will continue to press the Rabbi to institute, at the very least, parent notification and permission, and we will keep you informed of developments.

It’s hard for me to see what the high school can do here, at least as a matter of law rather than social pressure. The school lets students go out during lunch, and students can go to a restaurant, go to a bookstore, talk with people on the street, or whatever else. Conversely, adult residents can try to sell students food or books, can try to get them to take leaflets, can engage them in political arguments, or can try to lecture them about Judaism (whether on its own or in exchange for food).

Nor is the lack of parental permission legally significant, I think. Stores don’t need parental permission slips to sell high school students food or books. Likewise, a synagogue doesn’t need parental permission slips to talk to high school children or feed them. Indeed, requiring permission slips of religious institutions but not of others would itself violate the Free Exercise Clause, by discriminating against religious practices (see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)).

Indeed, the violent video game case — Brown v. Entertainment Merchants Ass’n (2011) — is powerful precedent against any such permission requirement. There the Court struck down a ban on selling video games to children, even though parents (and some other relatives) could distribute the games to the children. (To be sure, the exception was for direct delivery by parents, and not for parental permission slips, which is what’s suggested to hear; but it seems pretty close.) In the process, the majority stated,

At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that “only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].”

If that’s what the Justices thought about limits on conveying violent videogames to children, I would think that limits on conveying religious ideas to children would be even more troublesome. And the fact that the ideas are combined with the provision of free food strikes me as not changing the analysis.

None of this means that this practice is proper, effective, or neighborly. But it seems to me that it’s indeed legally protected, and the school can’t do anything about it, at least so long as it has a policy of letting high school students leave campus during the day.