The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
During the New Deal, the Roosevelt administration rated communities based on whether they were desirable for lending. The government color-coded the maps to give banks a helpful guide. More desirable areas were outlined in green. Declining areas were outlined in yellow. And risk neighborhoods were outlined in red. Unsurprisingly, the "redlined" neighborhoods tended to be poor, black communities. And, in turn, banks denied loans to these redlined communities. To this day, the legacy of redlining is still felt, especially in urban areas.
Did anyone in Governor Cuomo's office reflect on this history? Today, the New York Governor announced a new policy to contain COVID-19. His administration will color-code neighborhoods based on the COVID-19 infection rate. Yellow neighborhoods will have light restrictions. Orange neighborhoods will have heavy restrictions. And red neighborhoods will have stringent restrictions. All schools will be closed in red and orange neighborhoods. In red zones, houses of worship will have strict 10 person caps, regardless of capacity.
And make no mistake. These red zones will not be drawn based on geographic features. They will be gerrymandered to fit Orthodox Jewish communities, but exclude others.
The tone-deafness of this move is absolutely stunning. The Governor is drawing up the 21st century equivalent of ghettos for Jews. And he is encircling these ghettos with red lines. The people in these communities will be subject to heightened inspections, and no doubt, harassment. Quite possibly the only area of New York that will see a greater presence of law enforcement will be Jewish communities. Police officers will stand outside temples, like bouncers at a club, blocking entry after 10 are inside.
Cuomo seems to think he can twist arms, and pressure Jews into compliance. It will not work. Consider this statement from Agudath Israel, a leading Jewish organization:
Governor Cuomo's surprise mass closure announcement today, and limit of 10 individuals per house of worship in "red zones," is appalling to all people of religion and good faith. We have been down this path before, when religious practices were targeted for special treatment by the Governor's Executive Order in May. A suit was filed challenging the Governor's Order then (in which Agudath Israel filed an amicus brief), and the court found it unconstitutional. Repeating unconstitutional behavior does not make it lawful. Moreover, it should be made clear that the Governor's reference to a "good conversation" he had earlier today with a group of Orthodox Jewish leaders was largely a one-way monologue, and contained no mention of this new plan.
Agudath Israel intends to explore all appropriate measures to undo this deeply offensive action.
Agudath is not alone.
Update: The Governor has issued a press release, which I include after the jump.
From: Press Office <Press.Office@exec.ny.gov>
Sent: Tuesday, October 6, 2020 6:53 PM
To: Press Office <Press.Office@exec.ny.gov>
Subject: GOVERNOR CUOMO ANNOUNCES NEW CLUSTER ACTION INITIATIVE
|For Immediate Release: 10/6/2020||GOVERNOR ANDREW M. CUOMO|
GOVERNOR CUOMO ANNOUNCES NEW CLUSTER ACTION INITIATIVE
Initiative Developed in Consultation with Leading National Public Health Experts—Dr. Noam Ross of EcoHealth Alliance, Dr. Michael Osterholm of the University of Minnesota and Former CDC Director Dr. Tom Frieden
New Initiative Maps Clusters by Density of Cases to Address COVID Hot Spots in Brooklyn, Queens, and Broome, Orange and Rockland Counties
Fines for Sponsors of Mass Gatherings Increased to $15,000
New Rules and Restrictions in Effect for Minimum of 14 Days
Governor Andrew M. Cuomo today announced a new cluster action initiative to address COVID-19 hot spots that have cropped up in Brooklyn, Queens, and Broome, Orange and Rockland Counties. Working with the top public health experts, New York State developed a science-based approach to attack these clusters and stop any further spread of the virus, including new rules and restrictions directly targeted to areas with the highest concentration of COVID cases and the surrounding communities. The new rules will be in effect for a minimum of 14 days.
The plan was developed in consultation with national public health experts including Dr. Noam Ross of EcoHealth Alliance, Dr. Michael Osterholm of the University of Minnesota and former CDC Director Dr. Tom Frieden.
"A cluster is just that—it's a cluster of cases, a high density of cases, and it seeps and grows from that cluster almost in concentric circles. Drop a pebble into the pond, the pebble goes in, then there's one ring, two rings, three rings, and the rings continue across the pond. When you see the cluster, you have to stop it at that point," Governor Cuomo said. "Our strategy is to crush the cluster and stop the spread, and we're announcing a special initiative to do just that. Step one, you take the most dramatic action within the cluster itself where you have the highest density of cases. Understanding that the people in that cluster interface with the surrounding communities, take additional action in the communities surrounding the cluster. Then as a precautionary measure, take action in the communities that are outlying that area."
The initiative is composed of three steps:
- Take dramatic action within the cluster.
- Take action in the area surrounding the cluster to stop the spread.
- Take precautionary action in the outlying communities.
The initiative will currently apply to clusters in the following areas:
- Broome County (One Area, Yellow)—Click Here for Map
- Brooklyn (One Area, Red, Orange and Yellow)—Click Here for Map
- Orange County (One Area, Red and Yellow)—Click Here for Map
- Queens (Two Areas, Red, Orange and Yellow)—Click Here and Here for Maps
- Rockland County (One Area, Red and Yellow)—Click Here for Map
The initiative will divide clusters and the areas around them into three categories with successively higher restrictions within each one:
Red Zone — Cluster Itself
- Houses of Worship: 25 percent capacity, 10 people maximum
- Mass Gatherings: Prohibited
- Businesses: Only essential businesses open
- Dining: Takeout only
- Schools: Closed, remote only
Orange Zone — Warning Zone
- Houses of Worship: 33 percent capacity, 25 people maximum
- Mass Gatherings: 10 people maximum, indoor and outdoor
- Businesses: Closing high-risk non-essential businesses, such as gyms and personal care
- Dining: Outdoor dining only, 4 person maximum per table
- Schools: Closed, remote only
Yellow Zone — Precautionary Zone
- Houses of Worship: 50 percent capacity
- Mass Gatherings: 25 people maximum, indoor and outdoor
- Businesses: Open
- Dining: Indoor and outdoor dining, 4 person maximum per table
- Schools: Open with mandatory weekly testing of students and teachers/staff for in-person settings. The New York State Department of Health will establish a percentage of teachers and students/staff who need to be tested by Friday.
The enforcement of the zones will go into effect as soon as tomorrow and no later than Friday.
Governor Cuomo also announced that fines for the sponsors of mass gatherings in violation of state public health rules will be increased to $15,000.
Four New York City politicians issued a joint statement:
Joint Statement From Senator Simcha Felder, Assemblyman Simcha Eichenstein, Councilman Chaim Deutsch & Counsilman Kalman Yeger
We are appalled by Governor Cuomo's words and actions today. He has chosen to pursue a scientifically and constitutionally questionable shutdown of our communities. His administration's utter lack of coordination and communication with local officials has been an ongoing issue since the start of the pandemic, and particularly recently as we face this uptick. Though we are the representatives of "hotspot" neighborhoods, we have been disincluded from conversations with the governor and his leadership team as they made devastating decisions affecting the people we serve.
What occurred today can only be described as a duplicitous bait-and-switch. The governor informed Jewish community leaders in a conference call that synagogues in "red zones" would be permitted to operate at 50%, and he requested community cooperation (which he was assured would happen). Outrageously, just hours later, Governor Cuomo announced a draconian return to restrictions that would shutter thousands of New York businesses and limit houses of worship to a maximum capacity of 10 (no matter the maximum capacity of the building).
Even worse, his rhetoric in recent days has been irresponsible and pejorative, particularly to a community of Holocaust survivors and their descendants, for whom his language was reminiscent of past verbal attacks on Jewish communities. Governor Cuomo's choice to single out a particular religious group, complete with a slideshow of photos to highlight his point, was outrageous. His language was dangerous and divisive, and left the implication that Orthodox Jews alone are responsible for rising COVID cases in New York State. This implication is not born out by the state's own data.
We will continue to encourage total compliance with mask-wearing and social distance guidelines in our communities. In recent weeks, we have seen a vast increase in compliance throughout our communities. We have personally organized massive mask distributions in areas that have seen an uptick in positive cases – distributing hundreds of thousands of masks to our constituents. Sadly, instead of working alongside our community to build on our work, the governor has instead chosen to respond with threats and aggressive enforcement — a tactic which has historically failed in all communities throughout New York.
That said, it is disgraceful that Governor Cuomo would impose these restrictions targeting our community in the midst of our Jewish holidays. Because of his unilateral and irresponsible acts, our community is rightfully shocked, angered and highly frustrated. Americans are constitutionally permitted to worship freely, and Governor Cuomo may be assured that we intend to exercise that right without his interference. G-d Bless America.