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Tanya Books

Appeal Brief Appeal Letter Appeal Analysis

Appeal Brief

DisasterFEMA-1498-DR
ApplicantChabad Hebrew Academy
Appeal TypeSecond
PA ID#073-USSYQ-00
PW ID#829
Date Signed2005-09-11T04:00:00

Citation:

FEMA-1498-DR-CA; Chabad Hebrew Academy, San Diego, California

Cross-
Reference:
Eligible Equipment, Religious Items


Summary:

The Cedar Fire started on October 25, 2003, and swept through San Diego County, California, destroying the Chabad Hebrew Academy (Academy). The Academy is an eligible private non profit, accredited educational facility, which serves 320 students from preschool through 8th grade. FEMA initially denied $2,550,000 in funding for 30,000 Tanya books (120 sets with each set containing 250 books) because of their use as a religious teaching tool. The Academy’s first appeal asserted that the books were not used for primarily religious purposes, but rather for “non-religious, educational, literary, and cultural purposes.” FEMA denied the Academy’s first appeal on October 28, 2004, stating that “the large number of copies indicated that the books were for religious education, not research and education by the public. The Academy submitted a second appeal in which the Academy stated that the Tanya books were stored by the main library, rather than kept in the main library collection itself and not directly accessed by the students. Instead they were distributed to external individuals and institutions.”

Issues:

Are the Tanya Books eligible educational materials?

Findings:

No. The Tanya books were stored at the school and distributed as part of the mission of the Friends of Chabad Lubavitch, San Diego, California, and not for the education of the students at the school. While the Academy may be a subsidiary of the Friends of Chabad Lubavitch, San Diego, California, Public Assistance Program funding is intended for restoring the function of the Academy, not the Friends of Chabad umbrella organization. Items that are unrelated to the education of the students at the Academy are not eligible for reimbursement.

Rationale:

44 CFR § 206.221 (e)(1), which defines the eligibility of a private non-profit educational facility.

Appeal Letter

September 11, 2005

Paul Jacks
Governor’s Authorized Representative
Office of the Director
Governor’s Office of Emergency Services
P.O. Box 419047
Rancho Cordova, California 95741-9047

Re: Second Appeal, Chabad Hebrew Academy, PA ID: 073-USSYQ-00,
Tanya Books, FEMA-1498-DR-CA, Project Worksheet (PW) 829

Dear Mr. Jacks:

This letter is in response to your February 14, 2005, letter forwarding the above referenced second appeal on behalf of the Chabad Hebrew Academy (Academy). The Academy is appealing the ineligible determination of $2,550,000 for the replacement of 30,000 Tanya books (120 sets with each set containing 250 books). As described in the enclosed appeal analysis, I have determined that the Academy has not provided adequate documentation to support reversing the previous appeal decision.

Therefore, I am denying the appeal. Please inform the Academy of my decision. My determination constitutes the final decision on this matter pursuant to 44 CFR § 206.206.

Sincerely,
/S/
David Garratt
Acting Director
Recovery Division
Emergency Preparedness and Response

Enclosure

cc: Karen Armes
Acting Regional Director
Region IX

Appeal Analysis

BACKGROUND

The Cedar Fire was part of a series of wildfires which swept through San Diego,
Los Angeles, Riverside, San Bernardino, and Ventura counties within the State of California, from October 21, 2003, through March 31, 2004. The Cedar Fire started on October 25, 2003 and burned 280,000 acres. The fire destroyed the grounds, 21 modular buildings and other structures of the Chabad Hebrew Academy (Academy). The Academy is a subsidiary of the Friends of Chabad Lubavitch, San Diego, California, and is an eligible Internal Revenue Section 501 (c)(3), private non profit, accredited educational facility, which serves 320 students from preschool through 8th grade. PW 829 was funded for $102,453.75 and addresses destroyed contents contained in the library, such as furniture, fixtures, equipment, teaching aids and supplies. The scope of work also noted 30,000 Tanya books (120 sets with each set containing 250 books) with a replacement cost of $2,550,000, and listed them as ineligible items because of their use as a religious teaching tool.
First Appeal

The Academy submitted an appeal on June 25, 2004, for $2,550,000 which the State forwarded to the Federal Emergency Management Agency (FEMA) on August 23, 2004. The first appeal addressed the eligibility of the Tanya books, asserting the books were not used for primarily religious purposes, but rather for “non-religious, educational, literary, and cultural purposes.”

The Academy indicated that it was eligible per the regulation found at
44 CFR § 206.226 (h), Equipment and furnishings, and (i) Library books and publications. In addition, the Academy asserted that although the Tanya books may be religious in some aspect of their nature, because they are not used for a religious purpose, the exceptions under 44 § CFR 206.221 (e) (1), which excludes “buildings, structures and related items used primarily for religious purposes or instruction,” does not apply.
In support of its statement, the Academy indicated that the school is used for primarily secular purposes and the library was maintained and accessible to the students and general public. The Academy also submitted signed declarations by

Rabbi Yonah Franklin, co-founder of Chabad in San Diego and the Academy, and
Dr. Ellen Zyroff, Principal Librarian for the San Diego County Library. Dr. Zyroff stated, “[C] copies of the book of ethical, mystical teachings of Tanya, and books relating to the Tanya, are kept by secular libraries, and their presence in a library collection does not mean that they are necessarily religious in character or use.”

The Academy also requested an assurance that its request for Federal assistance would be carefully evaluated to ensure there was no religious discrimination, citing the President’s Executive Order for Equal Protection of the Laws for Faith-based and Community Organizations.

FEMA denied the Academy’s first appeal on October 28, 2004, stating that “the 120 sets of Tanya books were used for religious teaching and are not eligible for Public Assistance (PA) Program funding. The large number of copies (120 sets) indicated that the primary purpose of the religious books were for religious education, not research and education by the public.”

Second Appeal

The Academy submitted a second appeal on January 10, 2005, which the State forwarded to FEMA with its support on February 14, 2005. The second appeal provided additional explanation for the large number of Tanya books within the school library. The Academy “published and distributed these books over the years to individuals and intuitions at different locations across the United States, serving as the book’s central storage and shipping repository. They were never accessed by students for religious purposes. The Tanya books were stored by the main library, rather than kept in the main library collection itself. Thus they were considered part of the overall library, but were not accessed in the same manner as the other library books, which were directly available for public use. Instead they were distributed to external individuals and institutions.”

DISCUSSION

While the Book of the Tanya, formally known as the Likkutei Amarim, captures the core philosophy of the Lubavitch Chasidic Jewish religious movement, it does not mean that the book in itself is ineligible for funding if it is used for a non-religious purpose within the educational facility in question. However, based on the information submitted with the first and second appeals, the Academy has not demonstrated that the Tanya was being used for secular purposes. Furthermore, it appears that the Tanya was not primarily intended for use by the students attending the school, but was primarily distributed to individuals and entities outside of the school for purposes not in keeping with the mission of the Academy.

The Academy states that FEMA erroneously determined that the large number of Tanya books meant that the books were being used for religious teaching rather than general education. The books were not being used for any religious or liturgical purpose, but were accessed by the Academy students and by non-religious members of the general public.

However, the extraordinary number of Tanya books (30,000) kept at the Academy indicates that its use was other than general reference. FEMA previously reviewed the collections of the San Diego, San Francisco, Los Angeles, and New York City public library systems for their holdings of the Tanya. The research showed only a few books in three of the public library systems. The first appeal concluded that the total number of books held by the Academy was too large a quantity than would be found in a secular public library, indicating that the Tanya was being used for a different purpose than research or general use. Dr. Ellen Zyroff was contacted on August 2, 2005, regarding her notarized declaration on June 16, 2004. When presented with the number of Tanya books that the Academy held, she indicated that it was an unusual number of books, and that she was only speaking to the general use of the Tanya book in most libraries. She could not comment for what purpose or intent that many books might be used for, but that a more specific purpose may have been intended by the person(s) that ordered them.

The actual purpose for which the Tanya books were being used was further clarified in the Academy’s second appeal. The Academy indicated that the Tanya books were stored in the main library but were not actually directly available for public [student] use, but were instead distributed to external individuals and institutions across the country. The Academy also stated that this “was consistent with the Academy’s general goals as a social and education organization.” The Academy then stated that it was also a subsidiary of the Friends of Chabad Lubavitch, San Diego, California, a non-profit education and social service organization which provides various services (drug abuse prevention, chaplaincy, etc.) to the community at large.

The first part of the Academy’s mission statement listed on its website specifically states that its mission is to educate the students attending the Academy, not other institutions or individuals outside of the school. It states, “The students at Chabad Hebrew Academy, through meaningful Judaic and Secular learning experiences, will be literate, capable and sensitive individuals who embrace their Jewish heritage.”

PA funding is intended to provide supplemental assistance to replace damaged facilities and equipment used for the education of the students enrolled at the school.
44 CFR § 206.221 (e)(1) defines a private non-profit educational facility as a “classroom plus related supplies, equipment, fot purposes, but does not include buildings, structures, and related items used primarily for religious instruction.”

The information submitted by the Academy strongly suggests that Tanya books were published and stored at the school, and distributed as part of the mission of the Friends of Chabad Lubavitch, San Diego, California, and not for the education of the students at the school. While the Academy may be a subsidiary of the Friends of Chabad Lubavitch, San Diego, California, PA funding is intended to restoring the function of the Academy. Publication, storage, and public distribution of books is not consistent with the primary purpose of an educational institution. Items that are unrelated to the education of the students at the Academy are not eligible for reimbursement under the PA program
FEMA’s regulatory requirements are consistent with the President’s Executive Order for Equal Protection of the Laws for Faith-based and Community Organizations, which affirms that faith based organizations may compete for and utilize for Federal financial assistance, so long as the assistance is not directly used to support any inherently religious activities.

CONCLUSION

The Academy has not demonstrated that the use of the Tanya books is for secular education purposes at the school. Accordingly, there is no basis for granting the appeal. The appeal is denied.

Last updated February 4, 2020