The Volokh Conspiracy

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NYC Imposes Additional Requirements on Private Schools in Predominantly Jewish Neighborhoods in Queens and Brooklyn

But the City did not impose restrictions on similarly situated, non-Jewish neighborhoods in the Bronx, Manhattan, and Staten Island


Last week, on the eve of Yom Kippur, I blogged about New York City's plans to impose heightened restrictions on Jewish neighborhoods in New York.

Yesterday, New York Governor Andrew Cuomo, flagged the "20 hotspot Zip Codes" with positive cases (Kings County is Brooklyn).

Yesterday, the New York City Commission of Health and Mental Hygiene imposed a series of new restrictions on eight of these zip codes in Brooklyn and Queens. I will list the positivity rate in each zip code, as well as the number of positive tests.

  1. Borough Park neighborhood of Brooklyn: 11219 (5%, 12) and 11204 (6%, 13).
  2. Midwood neighborhood of Brooklyn: 11210 (4%, 7) and 11230 (8%, 29).
  3. Gravesend neighborhood of Brooklyn: 11223 (4%, 11).
  4. Sheepshead Bay neighborhood of Brooklyn: 11229 (4%, 11)
  5. Kew Gardens neighborhood of Queens: 11415 (this zip code is not listed on Governor Cuomo's tweet)
  6. Far Rockaway neighborhood of Queens: 11691 (3%, 7)

All of these zip codes are in predominantly Jewish neighborhoods in Brooklyn and Queens.

The Commissioner did not impose restrictions on six neighborhoods in New York that had comparable positivity rates and positive tests:

  1. The Marine Basin neighborhood in Brooklyn: 11234 (4%, 10).
  2. Two neighborhoods in the Bronx: 10465 (4%, 5) and 10462 (3%, 7).
  3. The Inwood neighborhood of Manhattan: 10040 (4%, 7).
  4. Two neighborhoods in Staten Island: 10306 (3%, 5) and 10304 (3%, 6). (I grew up very close to these zip codes).

These neighborhoods are not predominantly Jewish.

The restrictions on private schools in this area are very onerous.

All non-public schools in the affected zip codes must comply with the following additional requirements:

  • All individuals on the school premises must remain at least 6 feet apart at all times, except: in emergencies or when doing so would create a safety hazard; or when physical barriers are put in place between individuals in accordance with New York State guidance for in-person instruction at pre-k to Grade 12 schools during the COVID-19 public health emergency; and
  • Face coverings are required in school buildings at al times, except for individuals who cannot wear a face covering because of developmental, medical or age reasons;
  • Coordinating with the Department and the Test + Trace Corps to identify, isolate and prevent the spread of COVID-19; and
  • Following the protocols established by the Department for opening and closing classrooms and schools if a student or staff is confirmed with COVID-19, and excluding students and staff who have symptoms or are confirmed with COVID-19 or have been identified as a close contact to someone with COVID-19.

Students, teachers and staff having close contact with confirmed cases of COVID-19 must quarantine for 14 days from such contact, in accordance with the New York State Department of Health's guidelines for precautionary quarantine.

This order shall be effective immediately and remain in effect through the end of the 2020-2021 school year, including any summer school sessions during 2021, or such earlier time as I may indicate….

An attorney in New York told me that if read literally, it is impossible to comply with these rules.

Get the TROs ready.

NEXT: Today, CUNY School of Law. Tomorrow, your Law School.

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  1. Sounds like that German fellow, Warren Wilhelm, is not a big fan of the Hebrews.

  2. Prof. Blackman appears to have a genuine fondness for our society's backward, ignorant, lethally reckless, disaffected misfits.

    1. Neo-cons who don't golf on Saturday, amirite?

      1. Trump -- leader of the disaffected, ignorant, backward clingers -- seems comfortable with golfing at any time or all of the time.

        1. Oh yeah?
          Well, Biden, leader of of the...erm...leader of...?

          1. Well, he's at the top of the Harris-Biden ticket

      2. No, CUNY students, about as backwards and illiterate as you will find anywhere.

    2. Kirkland, what part of "similarly situated" can you not comprehend?

      1. What makes you think the excluded ZIP codes are "similarly situated" to the included ones?

        The order applies to non-public schools in neighborhoods where those non-public schools have been identified as a vector for spread of the virus. If there are non-public schools in the Bronx that are similarly responsible for the COVID infections there, then - by all means, they should be subject to the same "impossible" standards. But that doesn't seem to explain the difference in rates.

    3. Well, he grew up in Staten Island, apparently.

  3. Am I right in thinking that if it's literally impossible to comply with a law, then the law is null and void?

    1. So much for the law being a bullwark against tyrrany ... by the time the law gets to this, the damage will be long and deep (and neither the governor nor the mayor will suffer any significant consequences).

      1. Maybe the Jews will stop blindly voting Democrat.

        Blacks are starting to do that, which is why we are hearing all the "racism" allegations.

        1. Jews are such a small fraction of the population that I don't think that their voting habits matter. Anyway, none of these tactics ever stop with Jews.

        2. The Jews in those neighborhoods mostly don't vote Democrat.

          1. I was going to say that. These Orthodox Jewish communities are not bastions of Democrat votes. It is the Reformed and "secular" Jews that are bastions of Democrat votes.

          2. The political calculation is a little complicated, however. Secular/Reform liberal Democratic Jews mostly despise the ultra-Orthodox, but they also react hostilely if any non-Jew criticizes the ultra-Orthodox. So most politicians pay lip service to the ultra-Orthodox communities to ensure that they retain the secular/Reform Jewish vote. In NYC, that vote is not an insignificant portion of the electorate.

            1. Reform and Reconstructionist Jews are mostly secular and mostly liberal. Conservative (Masorti) Jews are about 2/3 liberal; 1/3 conservative. Modern Orthodox Jews? I have no idea. Ultra-Orthodox Jews are mostly conservative.

              1. Ultra-Orthodox Jews are mostly conservative.

                While that's true (but primarily culturally — not economically), it's also true that they mostly care about themselves. Er, that came out worse than I intended. What I meant was that they have insular communities and parochial concerns; they're not interested in larger policy debates about the world. They just want to be left alone as much as possible to live their chosen lifestyle.

        3. No. Most Jews are secular. However, most Orthodox Jews are conservative and vote Republican. Secular Jews are coming to hate the Orthodox Jews; some of the most awful, hateful things I have ever heard against Orthodox Jews have been said by liberal Jews.

          However, it remains to be seen how long secular Jews continue to identify as Jewish. And secular Jews are not having many children, whereas Orthodox Jews are having lots of children. In a few generations, you may see that a majority of the people who identify as Jewish will be Orthodox Jews.

          I am a member of a Conservative Shul (though they prefer the name Masorti now). We are one of the smallest denominations of Judaism. When my wife and I were living outside the US a few years ago, we were far happier worshiping with the Chabad House than we were with the Reform congregation. Right before we returned to the US, we went to a film premier about the history of the synagogue on our island. The last 20 minutes dealt with the fear that the Reform congregation had that the Chabad Jews would take over the synagogue.

          1. Of course, Chabad takes a rather different attitude towards Masorti/Conservatives than most Orthodox do. You would likely not have felt quite the same welcoming attitude if you had tried to worship with, e.g., the Satmar. (Nothing against them in particular; just picking a Hasidic group at random.)

  4. This is the modern expression of the ‘Jew as Plague carrier’ libel.

    Moreover, who cares about “test positive” rates? I can make the “test positive” rate anything I want it to be by choosing who to test. What really matters is ICU admission and case fatality rates.

    1. You think NYC is targeting Jews because the New York City Commission of Health and Mental Hygiene thinks they are dirty and disease-ridden?

      1. Why do you think they're targeting Jews, Sarcastro?

        1. Because you stopped beating your wife.

          1. No I didn't!

            1. I stand corrected.

      2. No. I think that Governor Cuomo and Mayor Deblasio, who grew up steeped in Christian culture, cannot help but have millennia-old Christian prejudices towards Jews. These prejudices operate at the pre-cognitive, almost visceral, level.

        They also don’t, can’t actually, fathom that for many of these Jews, their communal life has a much greater value than their individual health and safety. They’re not seen as imposing “science” or “health” on these Jews but imposing “non-Jewish” *values* on them. (And they are doing that.)

        This is the essential libertarian argument — imposing one size fits all — is not an appropriate job (maybe) of government except for protecting fundamental individual rights.

        The only possibly valid claim is that you getting sick endangers me. But that’s debatable, especially in the case of these inherently insular communities.

        1. Hate to defend De Blasio, but Marine Park, which isn't under extra scrutiny, has plenty of Jewish private schools. And the regs are the same as for the public schools.

          1. Likewise, there are plenty of Jews and plenty of Jewish schools around me on the Upper West Side, but the anti-Semites who run the City (/sarc) seem to have missed our neighborhood.

            1. The Upper West Side has a very different kind of Jews. The kind who vote Democrat. The kind that are religiously Jewish but culturally Protestant.

        2. I think that Governor Cuomo and Mayor Deblasio, who grew up steeped in Christian culture, cannot help but have millennia-old Christian prejudices towards Jews.

          So all Christians are kinda antisemetic; like it's in their blood or something.

          1. Not the blood, but the mother's milk, yes. It's deep in the culture and hard to get rid of, even with the best of good will.

          2. In the same way that all white people are racist. We grew up in a culture with a set of ancient myths and norms and assumptions and identifiers of who is "in" and who is "out". Especially when there's an "emergency", when we feel threatened, when "fight or flight" takes over, when there's no time (or we don't take the time) to think, only react, our decisions become more influenced by those myths and assumptions.

      3. Because, Sarcastr0, they answer to a higher authority.

    2. This is the modern expression of the ‘Jew as Plague carrier’ libel.

      There are rational reasons that the Hasidim might wish to lower their infection rate so as to not reinforce steriotypes.
      Otherwise, results might affirm old steriotype.

      1. If only those Jews would be more like us Gentiles we Gentiles wouldn't think so badly of those Jews.

  5. The science on face coverings as a mitigator of COVID spread is equivocal - although few doctors would risk their careers to say so.
    I wonder whether this has any bearing in a legal mandate, or whether it's enough (for a legal argument) that some prominent doctors have endorsed the measure.

    1. Equivocal? I've seen equivocation by MDs opining outside their area of practice and expertise. But while nothing is immune to crank heterodoxy -- there's always an expert truther, birther or anti-vaxxer when you need one -- among practitioners in infectious disease and public health, there's a consensus on the value of wearing masks.

      Not that I doubt Trump supporters truly believe there's an unfalsifiably silent cohort of epidemiologists that are afraid Soros will sic ANTIFA on them if they express a skepticism shared by the president of the United States.

      1. I had responded with some citations from the peer-reviewed medical literature, but it appears that my response has been censored by the free-speech libertarians running the site (a first for me, on any social medium!).

        1. It's content neutral, but they insist on a single link at a time. So just post multiple posts with your sources.

          1. Thanks ... I didn't realize that. Sorry for any implication of content censorship.

    2. Well, my wife is a medical professional, to some degree anyway, (Dental assistant.) and her opinion is basically that, while masks certainly would be worthwhile as a mitigator of Covid spread, the masks people are actually wearing are pretty worthless.

      N-95? Sure. A single layer of cloth neck gaiter? A joke. Even the multi-layer cloth ones don't impress her much.

      I think she's being a bit harsh, it depends on whether the virus is spreading as a fine aerosol or sneezed droplets. But she did just get out of her PPE retraining, so I guess I can at least take her opinion as medically informed.

      1. That analysis is relevant to the efficacy of protecting mask wearers from contracting the virus. But the main objective is preventing them from spreading it, not contracting it. For that purpose, imperfect containment is far more effective than no containment.

  6. The refusal of the Orthodox Jewish community (you'll note that the secular/Reform Jews of the Upper West Side are not subject to any restrictions) to abide by generally applicable rules has been a serious problem throughout the COVID crisis. Note that the wisdom of those rules is irrelevant: they are imposed in accordance with statutory procedures by democratically elected officials. Note also that the Orthodox communities are heavy users of public hospitals and tax-supported health care programs, because they are generally poor but, unlike say the Amish, more than willing to take advantage of government programs. So they do not have the moral standing to invoke any sort of libertarian argument.

    1. Well, the argument that the "wisdom" (or morality) of the rules is of no moment as long as they are "democratically" imposed is problematic.

      It's true that much of the Orthodox Jewish community fully avails themselves of the state's social-welfare programs. It's not at all clear that doing so strips them of their individual rights to be left alone by the state. This is no less true than that simply accepting welfare payments should strip one of their 4th and 5th amendment rights.

    2. The refusal of the Orthodox Jewish community (you’ll note that the secular/Reform Jews of the Upper West Side are not subject to any restrictions) to abide by generally applicable Christian rules has been a serious problem throughout the Christian era.

      That's a little better, amirite?

      1. THIS Christian isn't supportive of those rules...

  7. These restrictions are not particularly difficult to comply with. They’re followed by pretty much all NYC companies. Social distancing; masks; contract tracing; isolation of those infected or symptomatic.

    1. Whether the “rules” are onerous is not the question.

      The question is whether the government has a right to impose rules on private schools where their customers, parents and students, are willing to patronize those schools under different, perhaps less stringent rules.

      The only possible justification for imposing such rules is that the prohibited behavior impacts the health of bystanders. The government is obligated to impose such rules uniformly throughout its jurisdiction. This it has manifestly failed to do. The burden of proof to justify the rules falls on the government. The government has offered no such proof. There’s no evidence that government imposed rules have had any impact on the spread of COVID-19. Indeed, there is absolutely no known correlation between varying government policies and viral spread.

      1. Josh expressly states that the restrictions are onerous and impossible to comply with. I’m responding to that claim. You apparently have other questions you’d like to address.

        1. I understood Josh to be saying that the rules are designed to be impossible to comply with thus resulting in shutting down any school that becomes the target of “inspection”. To paraphrase Beria, “Show me the school and I will show you the crime.”

      2. I'm pretty certain under Jacobson, courts will defer to the elected branches on whether the scientific evidence supports mitigation regulations.

        1. That may be. I was speaking philosophically not legally.

          1. Normatively, I think deferring to the political branches is a good idea because the courts are not more competent than the elected branches in evaluating scientific data. Thus, the decision should be left to those who directly answer to the voters.

            1. This deferral to elected officials prioritizes majority values over the values of others. That’s exactly the controversy at hand.

              Elected officials make decisions that lack economic discipline, have time horizons limited to the next election, and are incentivized differently than the public. They don’t really “represent” us. They make decisions instead of us.

              That’s why the founders wanted to “limit” government. They wanted to reduce the opportunities for elected officials to substitute (and impose) their decisions and values for ours.

              1. It sounds like you are arguing against representative democracy, in favor of a very activist judiciary, and not just for decisions related to COVID-19.

                1. No. If the experiment in "limited government" hadn't already proved a failure, I'd be arguing in favor of that. Since it has failed, I see no alternative but to argue for self-governance, political anarchy.

      3. I don't agree. The people who get sick use public hospitals and drawn on public funds for their health care. I'm tired of having my tax dollars go to the feckless and undeserving. If the private school families of Midwood and Gravesend want to disavow all government assistance, that's fine, but they haven't.

        1. Should we outlaw alcohol (again)? Drinkers burden the public health system. Smoking? Mandate diets for the obese? Exercise for the sedentary? There is no end to the kind of liberty-destroying government mischief that can be done in the name of efficient use of “public” resources.

          1. Alcohol is heavily taxed. Private schools are tax-exempt. If you wanted to have a program where schools that make large payments can buy out of COVID restrictions, I would be on board with that.

  8. Hey, Josh, is there some reason you feel the need to cite a "lawyer in New York" on how to read the expanded guidelines? Did you even bother to read the reopening standards for schools that they purport to supplement? What sense does it make to isolate a handful of slightly-elevated preventative measures as "impossible to follow," when there are already pages and pages of mandates and recommended "best practices" for schools that state almost the same thing?

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