Sarah M. Sternlieb, When the Eyes and Ears Become an Arm of the State: the Danger of Privatization Through Government Funding of Insular Religious Groups

• Publication year: 2013

WHEN THE EYES AND EARS BECOME AN ARM OF THE STATE: THE DANGER OF PRIVATIZATION THROUGH GOVERNMENT FUNDING OF INSULAR RELIGIOUS GROUPS

ABSTRACT

The Shomrim, Hebrew for “guards,” operate as an ancillary police force in Hasidic communities. Defined by devout adherence to traditional norms, Hasidic Jews confine themselves to insular communities within America. However, like many insular or inherently religious communities, they appear to have a propensity to discriminate against outsiders in their attempts at seclusion. Although the Shomrim hold themselves out as their community’s primary police force, they frequently commit bias crimes and other discriminatory acts. This Comment advances the novel argument that the Shomrim are state actors and that government funding to the Shomrim may also violate the Establishment Clause. The Shomrim receive substantial government funding, maintain close ties and connections with the police and the state, and perform a public function. Because these connections constitute a “close nexus,” the Shomrim’s actions are fairly attributable to the state. As state actors, the Shomrim would be subject to constitutional limitations and prohibited from discriminating against outsiders. However, remedying this attribution of state action implicates additional constitutional problems. This Comment proposes that under current state action doctrine and Establishment Clause jurisprudence, the only permissible solution in this context is to remove government ties and funding.

Using the Shomrim as a case study, this Comment addresses the problem of privatization through government funding of insular religious communities and organizations. The Shomrim demonstrate that when the government funds inherently religious providers of social services, a constitutional gray area is created in the attempts to reconcile state action with the Establishment Clause. This Comment asserts the government should be careful in funding inherently religious providers of social services because such providers increase the likelihood of discrimination.

INTRODUCTION 1413

1. THE SHOMRIM: THE “EYES AND EARS” BECOME AN ARM OF THE

   STATE 1417

   1. The Shomrim and the Hasidic Community 1417

   2. The Shomrim Act like the Police and Are Intricately Tied to

      the Police 1418

   3. Funding of the Shomrim and Ties to the Government 1421

   4. Criticisms of the Shomrim 1422

   5. The Legal Issues Presented by the Shomrim 1424

2. THE SHOMRIM AND THE ESTABLISHMENT CLAUSE: CAREFULLY TOEING THE LINE OF RELIGIOUS ENTANGLEMENT 1425

   1. Delegation and the Village of Kiryas Joel 1427

   2. The Lemon Test 1429

      1. Secular Purpose 1430

      2. Primary Effect 1430

3. THE SHOMRIM QUALIFY AS STATE ACTORS: WHEN THE “EYES

   AND EARS” BECOME THE STATE 1435

   1. The State Action Doctrine 1436

      1. The Shomrim Perform a Public Function 1438

      2. The Shomrim Have a Close Nexus with the State 1441

         1. Entwinement 1442

         2. Coercion and Encouragement 1444

         3. Willful Participant in Joint Activity 1447

   2. An Infringement on Substantive Rights Makes State Action More Likely 1449

   3. Privatization and the Perverse Incentives of State Action 1450

4. POSSIBLE SOLUTIONS FOR RELIGIOUS STATE ACTORS: A CONSTITUTIONAL GRAY AREA 1452

   1. Possible Solutions to the Shomrim Problem 1452

   2. The Problem of Privatization of Inherently Religious Organizations 1454

CONCLUSION 1457

INTRODUCTION

In a predominantly Jewish area in 2010, an African-American teen was beaten with a radio and told “[y]ou don’t belong around here” just blocks away from his own neighborhood.1 Nearly a decade earlier, men in navy blue uniforms2 struck a group of Hispanic girls with umbrellas and sprayed them

with a chemical substance.3 In another Jewish area, men driving patrol cars struck an African-American male with a baton and sprayed him with mace.4

Ten years before, a group of West Indian teens were pursued and run off the road by a man shouting racial slurs.5

Unifying these attacks are the perpetrators—men who wear navy blue, police-style uniforms and drive blue and white patrol cars.6 Often confused with the police, they are not police but the Shomrim—licensed citizen patrol groups found in many Hasidic7 communities across the United States.8 Reports are replete with accusations against the Shomrim of targeting blacks and committing other bias crimes.9 Articles frequently cite minority community members who have been stopped simply for not looking like the Hasidic Jews the Shomrim aim to protect.10 Even more of these crimes likely go unreported.

1. See Daniel Burke, Volunteer Unit Accused of Racism, WASH. POST, Feb. 5, 2011, at B2 (internal quotation marks omitted).

2. Corey Kilgannon, In Protecting Hasidic Neighborhoods, Squads Patrol Without Guns or Badges, N.Y.

   TIMES, Sept. 4, 2010, at A14 (noting the Shomrim “wore blue jackets with emblems . . . [and displayed] forelocks of the Hasidic”).

3. Anna Schneider-Mayerson, Hispanic Activists Want Shomrim Disbanded, N.Y. SUN, May 10, 2002, at

   1.

4. See Alex Mindlin, Patrolling the Streets, and Dissing the Rivals, N.Y. TIMES, June 1, 2008, at CY6.

5. Driver Is Accused of Chasing Youths, N.Y. TIMES, Apr. 26, 1997, at 27.

6. See MATTHEW SHAER, AMONG RIGHTEOUS MEN: A TALE OF VIGILANTES AND VINDICATION IN

   HASIDIC CROWN HEIGHTS 27 (2012); see also supra notes 1–5; cf. SHAER, supra, at 13 (entering a room, one man “saw seven men in navy blue uniforms and thought, Police”).

7. Hasidic Jews represent a sect of extremely religious, mystical Orthodox Judaism. Within the Hasidism

   are different sects with particular views and specific norms and dress (e.g., Satmar, Bobovich, and Lubodovich Hasidim). Although they tend to live and work within their own groups, they interact substantially with one another. This Comment refers to the various Hasidic sects collectively. See Joseph Berger, Killing Rattles a Jewish Community’s Long-Held Trust of Its Own, N.Y. TIMES, July 15, 2011, at A1. See generally Hasidism, in ENCYCLOPEDIA OF RELIGION IN AMERICA (Charles H. Lippy & Peter W. Williams eds., 2010), available at http://library.cqpress.com/era/encyra_943.1.

8. Nick Pinto, Gotham’s Crusaders, VILLAGE VOICE, Sept. 7, 2011, at 9.

9. See, e.g., Karen Matthews, Orthodox Communities Rely on Patrols for Safety, ASSOCIATED PRESS, July 16, 2011, available at http://www.usatoday.com/news/nation/2011-07-16-brooklyn-boy-volunteer-

   patrol_n.htm (“[C]ritics have accused some of being vigilantes who target blacks.”).

10. See, e.g., David Kocieniewski, Hasidic Patrol Group Faces Questions After a Crown Heights Clash,

    1. TIMES, May 11, 1996, at 21 (noting that members of the Shomrim randomly stop black pedestrians to ask

       Although the Shomrim work with and act like the police and receive funding primarily from direct government grants, they are not held liable in the same way as ordinary police officers. Because they are assumed to be private actors, constitutional provisions protecting individual rights do not apply.11

       
       

       This Comment addresses the problem of privatization and government funding of insular religious communities and organizations, using the Shomrim in Brooklyn, New York as a case study. Although the Shomrim may seem unique in many respects, they are a salient example of government funding of religious social service providers. The Shomrim emphasize an important and interesting intersection of the privatization of government power and government funding of insular religious organizations and social service providers.

       
       

       Contention and debate surround the funding of religious groups, particularly with the tremendous amount of money funneled to religious organizations through charitable choice and faith-based initiatives.12 On the one hand, religious organizations are often considered the most effective providers of social services.13 On the other hand, there are many problems associated with funding religious organizations, including the potential for discrimination, a lack of religious autonomy, and the tension between the Establishment Clause and the Free Exercise Clause.14

       
       

       The debate is further compounded by the propensity for inherently religious or insular groups, such as the Shomrim, to discriminate against outsiders. The provision of government funds to these groups should be suspect due to the “significant pressure on those institutions to discriminate . . . [to] fulfill their

       broad religious mandates.”15 This is especially concerning because of the

       potential for religious entities to use government funding to further partisan political ends, promising votes for money.16 While a religious group’s

       
       

       why they are in the neighborhood to make outsiders feel unwanted); Pamela Newkirk, Ice Slowly Thawing Ethnic Tension Seen Lessening, NEWSDAY (N.Y.), July 28, 1991, at 1.

11. U.S. CONST. amend. XIV, § 1 (“[N]or shall any State deprive any person of life, liberty, or property,

    without due process of law; nor deny to any person . . . the equal protection of the laws.” (emphasis added)).

12. See generally Ira C. Lupu & Robert W. Tuttle, The Faith-Based Initiative and the Constitution, 55 DEPAUL L. REV. 1 (2005) (identifying the partnership between religious entities and government agencies and describing the constitutional challenges such partnerships present).

13. 2 KENT GREENAWALT, RELIGION AND THE CONSTITUTION: ESTABLISHMENT AND FAIRNESS 353 (2009).

14. See generally Lupu & Tuttle, supra note 12.

15. David Saperstein, Public Accountability and Faith-Based Organizations: A Problem Best Avoided, 116 HARV. L. REV. 1353, 1366 (2003).

16. See id. at 1364–65.

    proclivity to discriminate is normally discussed in the terms of religious discrimination, the issue of discrimination against outsiders is significant and unfortunately given little attention.

    
    

    The question is whether these providers, who have been providing social services for years, should now be able to “benefit from the government’s desire” for privatization.17 There is some concern about whether there are certain areas that are so “governmental,” such as punishment, that they should not be privatized.18 This question of government privatization using religious social service providers “has significant constitutional implications for religious...