A Modesty Proposal
New York City’s half-baked inquisition.
Feb 3, 2014, Vol. 19, No. 20 • By MARK HEMINGWAY
A few of Williamsburg’s Hasidim
At first glance, it appears as if nothing has changed on Lee Avenue in at least 50 years. According to Allan Nadler, the director of the program in Jewish studies at Drew University, “no other post-Holocaust community has more faithfully and effectively preserved its old religious and cultural traditions and folkways, to say nothing of the Yiddish language.” Certainly, it’s hard to miss the ubiquitous black hats and distinctively modest attire of the Orthodox Jews strolling by. It’s a drastic contrast to the sartorially outrageous trendsters nearby.
Differing opinions about what you think is appropriate to wear might seem an unlikely source of legal trouble, but in contemporary New York, no one is left unscathed by the left-wing municipal bureaucracy. Herman San-ders’s father founded Sander’s Kosher Bakery on Lee Avenue in 1959. San-ders hadn’t even heard of the New York City Commission on Human Rights prior to being accused by it of violating the city’s discrimination laws and threatened with thousands of dollars in fines. Sander’s Kosher Bakery is one of seven Hasidic businesses in Williamsburg accused by the city of religious and gender discrimination. Their alleged crime? Posting a dress code in their storefront windows.
The offending signs read “Dress Code For Store. No Shorts, No Barefoot, No Sleeveless, No Low Cut Neckline” with the message repeated in Spanish. According to Sanders, he doesn’t even know who put the sign there—a not implausible suggestion considering storefront windows up and down the street serve as informal community bulletin boards and are populated with flyers. But as an observ-ant Jew who values modesty, Sanders admits he doesn’t disagree with the message, either.
“It didn’t offend me. And I don’t think it would offend the customers,” he told me. It was only after the New York Post wrote a characteristically cheeky item about the signs—“Brooklyn has lost its right to bare arms”—that the city’s human rights commission came calling. Specifically, the stores were accused of violating Section 8-107(4)(1) of the Administrative Code of New York, which disallows stores from denying service to customers based on “actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status.”
There’s one major problem with the city’s claim that the stores violated New York’s antidiscrimination law. Since the signs first appeared in July 2012, the New York human rights commission has produced a flurry of documents and held administrative hearings about the matter. Not once has the commission presented evidence or complaints that anyone was denied service as a result of the signs. Sanders insists every customer was served. “[The signs] didn’t help, actually. People still came in with shorts,” he shrugs.
Moreover, the human rights commission has never claimed that there’s anything wrong with private establishments imposing a dress code. The Four Seasons and courtrooms in New York enforce similar dress codes. The human rights commission’s stated objection to these particular dress code signs was an affront to logic and religious freedom. Last summer, the commission argued before an administrative judge that the dress code signs in the Williamsburg stores may be similar to dress codes at establishments elsewhere in the city. But because the signs were in Hasidic stores, they should be viewed as an attempt to force Orthodox Jewish beliefs on others. In other words, the commission argued that dress codes are permissible as a matter of taste or decorum, but not acceptable if they are an expression of religious conviction.
The administrative judge dismissed this line of reasoning from the commission out-of-hand, but gave the agency another chance to make its case. The judge essentially told the commission that the only way to prove the signs were discriminatory was to demonstrate that they were an attempt to use “code words” to keep those outside the tight-knit Jewish community from patronizing the stores. So the city returned to the drawing board, and ordered up a survey designed to show that the broader Brooklyn community found the signs offensive and discriminatory.
The results of the commission’s survey are suspect for a number of reasons. But even though the survey was conducted with the intent of proving the commission’s dubious case against the Jewish business owners, the results aren’t exactly damning. The commission’s own survey found that a plurality did not think the sign would make anyone feel discriminated against on the basis of religion. The survey did find higher numbers of people who felt the sign was unwelcoming based on gender. As absurd as this survey sounds, it was the central piece of evidence the human rights commission was slated to present at another administrative trial that was supposed to take place last week. The defense team for the Jewish businesses, meanwhile, conducted its own survey about reactions to the sign and produced markedly different results—87 percent of respondents thought the sign wasn’t unwelcoming to either men or women.
However, the human rights commission’s already weak case fell apart before last week’s trial even began. The trial was shaping up to be a matter of dueling witnesses and dueling surveys. The defense team representing the Jewish business owners—headed by Jay Lefkowitz, who served as general counsel in the Office of Management and Budget in George W. Bush’s administration—was to present the head of the research firm that conducted its survey to testify to its scientific validity. For its part, the human rights commission offered no expert to testify on behalf of its survey.
With no attempt to demonstrate the scientific validity of its survey, the commission would likely be laughed out of a real court of law. But the problem of activist human rights commissions enforcing politically correct orthodoxy is metastasizing precisely because such commissions have broad powers to impose penalties through proceedings outside the actual legal system. Even though these “trials” involve basic constitutional questions, can result in significant fines, require legal representation, and often drag on for years, administrative proceedings don’t provide the accused many of the standard protections one would find in a real courtroom. In fact, human rights commissions around the country are often responsible for both prosecuting and rendering judgment on those accused of violating discrimination ordinances.
It’s telling who the human rights commission did select to testify to the results of its survey. Out of more than 600 New Yorkers interviewed for its survey, the commission selected Joshua Wiles, a public school teacher in nearby Bedford-Stuyvesant, to testify to the fact that Brooklyn residents found the dress code signs discriminatory.
On January 20—the day before the trial was to begin—The Weekly Standard revealed online that Wiles had previously been arrested as part of an Occupy Wall Street demonstration, and in keeping with his left-wing beliefs, Wiles’s Facebook page was littered with items expressing a deep anti-Israel sentiment. According to Wiles, the creation of the state of Israel is “The Biggest Robbery of World” (sic). He accused the Israeli government of practicing apartheid on multiple occasions. And he accused the Israeli government of targeting innocent civilians and assassinating children. It’s reasonable to wonder if Wiles had his own irration-al prejudices against the Hasidic community in Brooklyn, and the exposure of Wiles’s anti-Israel bias quickly made news in New York’s Jewish community.
The next day, the administrative judge informed the human rights commission that its case was remarkably weak and that it might want to settle. The human rights commission was no doubt surprised by this turn of events—it had hoped to raise the potential fines involved from $2,500 to $75,000. But with the judge disinclined to even hear the case, the commission agreed to a settlement—though it didn’t get much. After more than a year of doggedly pursuing the case and wasting considerable resources on the matter, the city capitulated. It would drop the case against the businesses in Williamsburg and impose no fines. For their part, the businesses agreed that any future dress code signs “will make clear that everybody is welcome, which was the reality,” Lefkowitz told the Daily News.
It’s clear that the case had become an embarrassment to the city. Bill de Blasio, the new mayor, was asked about the matter at a press conference a few hours before the aborted trial was to begin. His Honor ducked the question, saying, “We want to respect every community in everything we do.” If New York’s new mayor is sincere about that sentiment, he can start by reining in the city’s out-of-control “human rights” bureaucracy.
Mark Hemingway is a senior writer at The Weekly Standard.
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