Inter alia means “among other things.” Legal types use it quite often, along with other choice Latin phrases. Using Latin adds presence, if not a bit of pretentiousness, to a document.
Sometimes, you need some pretentiousness to cover for the lack of substance. The Israeli High Court’s original decision on the Emanuel Bais Yaakov uses inter alia eleven times in the space of forty-nine pages with very, very wide margins. Remove the Latin, and very little else commands respect. As a part-time law prof, I find the decision an embarrassment – not for its conclusions as much as for its uninspired thought and shoddy support of key arguments. I would expect more from bright graduate students, let alone supposed legal luminaries.
Let me remove the issues that concern most people, which will distract from my thesis, which only concerns the way the Court goes about its business. I personally have no doubt that racism abounds in Israel, in many parts of the community, including a variety unique to the frum community. We should be campaigning vigorously against it, rather than denying it, and making foolish statements like “we can’t be racist – we learn Rambam.” I believe that the Court has every right to act against racism, de jure or de facto. (We legal folks just can’t get away from Latin!) As such, I believe that the Court’s order to take down the wall in the Emmanuel Bais Yaakov was justifiable. I believe that I would personally choke or shrivel up in a community with rules as insular as those of the Slonim school; I also believe that as much as I disagree, I cannot say that their position is indefensible. I have yet to meet the person or group that has a perfect or near-perfect way of keeping Torah values intact within a culture of markedly different values. Insularity may be no worse an option than what many of us have come up with. I believe that the Court picked the wrong test case for a just cause, since it is now abundantly clear that what motivated the requirements for admission to the Slonim school was not racism but conformity to strict standards of religious expectations and insularity.
I am willing to concede that reasonable people can disagree about whether the State (which provides the funding to the “recognized unofficial” school system) can set whatever rules it wants to advance the cause of racial and ethnic mixing. Yet here is where the decision fails miserably. To cut to the chase, the justices believe that the rules imposed by the Slonim school unfairly rule out full participation by Sefardim who wish to keep their Sefardi heritage intact, rather than follow someone else’s rules. They concede that some forms of discrimination are acceptable, but not those of the Emanuel Bais Yaakov, even though the authors of the admission requirements argue full voice that their sole concern is maintaining their own religious identity in full flower.
Admittedly there is a possibility of discrimination in other situations, but they are appropriate situations, such as when a boy or girl wishes to learn in a single-sex school. If that is the character of the school, that is how it should be. If there is a situation in which a child who does not observe the Torah and the commandments wishes to be admitted tomorrow to an Orthodox religious school, he will not be permitted to do so. If a Jewish or an Arab child wishes to be admitted to an Orthodox Jewish school or a religious Arab school, or in a certain kind of Jewish school or a certain kind of Muslim school, the student will not be able to say that the refusal is discrimination. [pg. 125]
What we would expect of a high court decision – any high court – is an objective way to differentiate between the examples in the preceding paragraph, and the assertions of the Slonimers. We should expect – demand – of a high court some formula that allows us to tell the difference between the legitimate discrimination (“appropriate” in their words) and the illegitimate. We would expect either a bright-line standard, articulated in a manner that law students would understand, or some usable balancing tests that would allow the same to predict the legal outcome of some theoretical cases.
Making outcomes predictable is what the law is all about. Instead, what we get from the justices is spleen. They looked at the situation, and they didn’t like what they saw. Nothing more insightful than that. This is not very helpful, and is very poor law.
Inter alia, we learn that the Court was well aware of that there was no conventional racist intent in the Slonimer standards. The advocate assigned originally to look into the complaint reported:
This split, with all of its negative aspects, was not done with an intention of discriminating against students because of their ethnic background and in practice there is no such discrimination. I arrived at this conclusion even though I am aware of the quantitative aspect of the ethnic separation between the two schools [pg. 90]
This did not stop Justice Levy from ignoring the finding, and instead arguing that Slonim was guilty of “flagrant ethnic preference with hollow statements.” No explanation or carefully reasoned argument as to why Justice Levy must disagree with Advocate Bas. Just so. [pg.95]
Inter alia, we discover many other things about Israel’s High Court. We learn that the justices must be working without law clerks. How else could we explain, in a decision as important as this one, the absence of footnotes that flesh out important concepts? Should there not be some consideration of the extent of discrimination against Sefardim in Israel, past and present, rather than some conclusory statements? Should we not find out about other and parallel attempts to balance the needs of the State against the right of religious expression?
Inter alia, we see that the Court does better at punting than at thinking or proving. The Ministry of Education doesn’t like the Slonim rules, and thinks them de facto discriminatory; Slonim defends them. Who bears the burden of proof? One would think that it is the function of the Court to weigh in on such an important point. Instead, we get:
With regard to the issue of ethnic discrimination, the Ministry of Education thought that in the absence of clear criteria with regard to the principles underlying the division of the school, the burden of allaying the prima facie concern that the basis for separating the students was ethnic discrimination rested with the Independent Education Centre. (i.e.the operator and manager of the Bais Yaakov) [pg. 93]
The Court tells us that “bureaucratic difficulties are placed in the way of Sephardic parents,” [pg.96], but never tells us what they are, or what the basis is for believing the petitioners rather than the defendants.
Inter alia, we find the investigative rigor of the Court sorely lacking. The decision is rife with statements that speak of anonymous and unsubstantiated reports, such as:
Some of the inhabitants of the town believe that the aforesaid separation was made because of a continuing tension between the Ashkenazi population and the Sephardic population in the town, and some feel that the school, by taking this action, has created an ethnic split, in order to discriminate against and victimize the Sephardic students and their parents [pg. 88; emphasis mine]
There are many more examples of “appears,” or “seems,” with insufficient evidence to back up a hunch.
A study of the various regulations shows that we are not dealing with a “track whose purpose is the study of the Hassidic way of life,” but with an attempt to separate different sectors of the population on an ethnic basis, under the cloak of a cultural difference. [pg. 115]
What study? What analysis? What results?
Inter alia, we gain insight into the mind of the Court. The justices like citing themselves, and whatever they have on their nightstand, rather than take the time to formulate the crisp, sharp reasoning (whether we agree or disagree) that we generally get from members of the US Supreme Court. I cannot imagine Justice Scalia ever citing the kind of mindless drivel that Judge Melcer cites:
Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature. This, of course, involves a profound humiliation of the victim of the discrimination. [pg 119]
A page later, he invokes two competing doctrines on equality and dignity: Aristotle, and Dr. Orit Kamir. The latter is….(fill in the blank. She is, no doubt, a fine modern thinker, but slightly less often cited than Aristotle.) What ever happened to demonstrating that a concept has a history and an audience before it is accepted as important? Not only does Melcer prefer Kamir, but he uses her axiomatically to deduce new theorems. (“It may be possible to deduce from this approach…) Absolutely breathtaking!
Inter alia, we learn that the Court must have a developed sense of humor. In reviewing the right to education, we are enlightened as to what Israeli students are guaranteed as part of The Basic Laws (i.e., Israel’s substitute for a constitution, effectively the product of whatever is on the minds of the Supreme Court):
To educate a person to love his fellow man, to love his people and to love his country, to be a loyal citizen of the State of Israel, who respects his parents and family, his heritage, his cultural identity and his language; to teach the principles in the Declaration of the Establishment of the State of Israel and the values of the State of Israel as a Jewish and democratic state and to develop an attitude of respect for human rights, basic freedoms, democratic values, observance of the law, the culture and beliefs of others, and also to teach an aspiration for peace and tolerance in relations between individuals and between peoples;…To teach Jewish law, the history of the Jewish people, Jewish heritage and Jewish tradition. [pgs. 100-101]
If instruction in all these areas is a fundamental right of Israeli students, the Court had better cancel their vacations. Slonim will be the least of their worries. I see a good number of potential lawsuits in the making – perhaps even a class action brought by a few generations of Israelis who are clueless about Jewish law and tradition, and multiple members of the faculties of Israeli universities who must have failed in the love-of-people-and-country curriculum.
We thought that the right of different communities to express itself according to its own cultural heritage was one of the Basic Rights. Inter alia, we learn that we were mistaken. It is only a relative right, contingent on adding to the cultural expression of others:
Since we have adopted the duty to treat human beings with dignity as a justification for non-intervention in their cultures, then we should say that if we find a group whose culture is not based on treating human beings with dignity, the validity of the group‘s claim that non-intervention in its culture is justified is undermined, and an opening is created for intervention in its cultural practices, in order to restore dignity to the human beings living in that culture. [pg.128]
Aren’t you happy we have a Constitution is this country? Watching the Israeli High Court is sufficient reason to join the ACLU.
Inter alia, we have proof that the haredi leadership was wrong. They thought that this intervention by the Court is part of a slippery slope, leading to the Court’s insistence that its authority must trump that of conscience and Torah. They were wrong. There is no slippery slope. They’ve already reached the bottom:
In Israeli law the right to freedom of religion has not yet achieved the status of a super-legislative constitutional right… According to some authorities, a horizontal balance should not be made with such a right, in so far as it is not super-legislative (if that is indeed its status), against the constitutional right of the protection of dignity, since the latter is higher than the former in the constitutional hierarchy.[pg.127]
Hiding behind the legal argot is a declaration that could not be clearer. The right of freedom of religion has not yet been firmly established in the Jewish State. Whatever right is there must bow to more important rights manufactured or discovered by the Bagatz.
Inter alia, we find some irony. When a people returned, in part, to its Land, it made the desert bloom, and built a viable economy in record time, even while sustaining the burden of ingathering multiple exiles and supporting a vast military apparatus. It applied Jewish genius to a host of disciplines, breaking new ground in medicine, agriculture, and defense. It exported its know-how around the world. When it strains at law – the traditional area of Jewish expertise – it falls on its face. We see in this decision nothing, nothing of the nuance and elegance of a Ketzos or R. Chaim, or even lehavdil the creativity of a Frankfurter, Brandeis, or Cardozo.
Others have expressed frustration with the law by likening it to a particular beast of burden. When Jews try to create a legal system removed from and opposed to their Torah, they come up with a different result, unthinking and sterile. In the hands of the Supreme Court, the law, sir, is a mule.