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Professor, rabbis disagree over legality of rabbinic hiring rules
by Toby Tabachnick, Staff Writer
Mar 26, 2014 | 3806 views | 0 0 comments | 26 26 recommendations | email to a friend | print
Anyone serving on a rabbinic search committee for a Reform or Conservative congregation quickly learns one thing: there are rules.

And those rules control, at least to some degree, which rabbis are eligible to work at which synagogues.

Unlike the job market for many careers, for many Jewish congregations, the employer is not free to hire just anyone it chooses. Rather, there is a system in place controlled by the particular denominations: the Reform movement’s Central Conference of American Rabbis (CCAR); and the Conservative movement’s Rabbinical Assembly (RA).

In determining who can interview where, for example, the seniority of the rabbi plays a role, as does the size of the congregation. And congregations are prohibited from seeking rabbinic candidates from outside their own movement.

The failure of a congregation or a rabbi to follow the rules can result in sanctions. For example, a congregation that looks outside its own movement for a rabbi may be prevented from interviewing other candidates from within the movement. Likewise, a rabbi seeking a job outside the parameters of his or her movement’s placement system also may be penalized.

Duke University School of Law professor Barak Richman, who became aware of these restrictions several years ago when serving on his Conservative congregation’s rabbinic search committee, believes that not only are such rules unfairly restrictive, they may be illegal under the Sherman Act, the anti-trust law enacted by Congress in 1890 to combat anti-competitive practices.

Richman was in Pittsburgh last Friday to present his theory as part of a continuing legal education program sponsored by the Agency for Jewish Learning. His talk, titled “Antitrust Law and Co-Religionist Commerce,” drew several attorneys, as well as a handful of local rabbis.

His talk focused on the restrictions put in place by the Reform and Conservative movements, but did not examine placement policies of the Orthodox or Reconstructionist movements.

Richman first posed his theory of the “rabbinic cartel” in a 2010 opinion piece published in The Forward. In his piece, he expressed frustration at being prevented from interviewing candidates from other movements when he was searching for a rabbi at his Conservative congregation. And he described how he became “fascinated to find an unexposed island of unequivocal antitrust violations.”

In his Pittsburgh lecture, which was held at Beth Hamedrash Hagodol-Beth Jacob synagogue, Downtown, Richman explained that the area of “co-religionist commerce” — internal dealings between parties which tend to adhere to a particular religious dogma — can include such matters as Islamic finance, the provision of kosher food and the Christian goods industry.

Like other types of commerce, these dealings need the protection of contract and tort laws, he said, but sometimes, the establishment and free exercise clauses of the First Amendment — the religious freedom clauses — “interfere.”

In some cases, religious organizations are exempt from certain laws because of a “ministerial exception” which allows them to be outside of the law in commercial dealings if they can show those dealings advance the religious mission of their organization.

When it comes to the rabbinic hiring rules put in place by the CCAR and RA, Richman thinks there is a problem.

“Rabbinic associations are violating the Sherman Act,” he said, stressing that those associations often create insurmountable obstacles to a congregation finding its best rabbinic match.

Richman has not yet tested his theory in court, as he has no legal standing to do so. Rather, he said, a congregation or a rabbi that was hurt by the restrictions would be a proper plaintiff for such a suit.

•••

According to Rabbi Alvin Berkun, rabbi emeritus of Tree of Life*Or L’Simcha Congregation and a past president of the RA, the rules imposed by the movements’ rabbinic organizations serve an important purpose.

“The rules are intended to protect rabbis as well as congregations,” Berkun told the Chronicle.

Prior to the imposition of the rules in the mid-20th century, the process of rabbinic hiring could be “very unseemly, very undignified,” Berkun commented during the question and answer portion of Richman’s CLE.

Rabbis were often “poached” from one congregation by another, simply going to the highest bidder.

“It was every man for himself,” Berkun said.

The Joint Placement Commission of the Conservative movement was formed in response to this chaotic form of job pursuit, Berkun told the Chronicle. As a “joint” commission, it works in conjunction with the United Synagogue of Conservative Judaism, the congregational branch of the movement; the Conservative seminaries, which represent the academic branch; and the RA, the rabbinic branch.

“To say that we’re not reflective of the needs of the congregation is not correct,” he said, “because the congregations have a place at the table.”

The seniority system has made the rabbinic job search “a more fair and equitable system,” Berkun continued. “And congregations are assured credentialed rabbis. Not all the time can congregations get that information if they’re dealing with the marketplace.”

Rabbi Aaron Bisno, spiritual leader of Rodef Shalom Congregation, expressed a similar sentiment at Richman’s lecture, saying the placement system helps ensure that Reform congregations will be served by rabbis credentialed by the movement.

“We believe that Reform congregations can only be served by graduates of a Reform seminary,” Bisno said.

While restrictions and rules govern the rabbinic hiring process, in the age of the Internet that process is evolving, Berkun said, and rabbis and congregations have more leeway in finding each other.

Years ago, a Conservative congregation was only permitted to interview a panel of five rabbis at a time — selected by the RA — and could not interview any additional candidates unless and until it rejected the first five.

After many complaints, that system was changed, Berkun said. Now, a rabbi can read congregational profiles online, then submit his name directly to a congregation, as long as he is eligible to work at that congregation based on the number of years since his ordination.

“Job-seeking for a congregation and for a rabbi is extremely tense and anxiety-ridden,” Berkun said. “There are a lot less complaints now that rabbis have more control over the system.”

As for Richman’s theory that rabbis should be allowed a totally free market in which to seek employment, Berkun disagrees.

“I don’t buy it,” he said. “I don’t see it. It would create the kind of chaos that we had 50 or 60 years ago. I just think he’s barking up the wrong tree.”

Rabbi Steven Fox, CEO of the CCAR, did not respond to requests for comments. Neither did Rabbi Elliot Schoenberg, international director of placement at the RA.

•••

Although the movements impose rabbinic hiring restrictions, many rabbis who are ordained by schools that are not affiliated with the major movements are nonetheless successful in finding pulpit jobs.

The Hebrew College Rabbinical School, a pluralistic rabbinic school in suburban Boston, has placed graduates, not only in independent congregations, but in Reform and Conservative congregations as well, according to Rabbi Dan Judson, the director of professional development and placement for that school.

Exceptions and waivers are sometimes permitted, he said.

“It’s usually the result of a synagogue not having success at finding a match within its organization, or when the congregation has a pre-existing relationship with one of my students,” Judson said. “Or, in some cases, a synagogue is looking to attract members beyond the typical members that synagogue usually attracts, a broader swath of the Jewish community. It’s usually a Conservative synagogue looking to hire someone who is more comfortable with nonobservant Jews.”

While the movements’ hiring rules do pose obstacles for rabbinic candidates from Hebrew College, Judson said he is content to work within the system.

“We appreciate and respect that the denominations have boundaries and rules,” he said. “We’re not interested in pushing them. We’ve been successful working within the system. I understand it and the need for the movements to protect their congregations.”

The restraints do prohibit his students from applying for a large number of congregational positions, Judson acknowledged, but “we’ve been able to overcome that.”

“We at Hebrew College have a relationship with the movements,” he said. “They place restraints on our students, but the Reform movement has been generous about accepting our students into the Reform rabbinate after ordination. After a three year probationary period they can become eligible for Reform movement jobs.”

(Toby Tabachnick can be reached at tobyt@thejewishchronicle.net.)
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