Justice Department sues on behalf of Muslim teacher, triggering debate

Justice Department sues on behalf of Muslim teacher, triggering debate

By Jerry Markon, Tuesday, March 22, 5:42 PM - The Washington Post

BERKELEY, Ill. — Safoorah Khan had taught middle school math for only nine months in this tiny Chicago suburb when she made an unusual request. She wanted three weeks off for a pilgrimage to Mecca.

The school district, faced with losing its only math lab instructor during the critical end-of-semester marking period, said no. Khan, a devout Muslim, resigned and made the trip anyway.

Justice Department lawyers examined the same set of facts and reached a different conclusion: that the school district’s decision amounted to outright discrimination against Khan. They filed an unusual lawsuit, accusing the district of violating her civil rights by forcing her to choose between her job and her faith.

As the case moves forward in federal court in Chicago, it has triggered debate over whether the Justice Department was following a purely legal path or whether suing on Khan’s behalf was part of a broader Obama administration campaign to reach out to Muslims.

The decision to take on a small-town school board has drawn criticism from conservatives and Berkeley officials, who say the government should not be standing behind a teacher who wanted to leave her students.

The lawsuit, filed in December, may well test the boundaries of how far employers must go to accommodate workers’ religious practices — a key issue as the nation grows more multicultural and the Muslim population increases. But it is also raising legal questions. Experts say the government might have difficulty prevailing because the 19-day leave Khan requested goes beyond what courts have considered.

“It sounds like a very dubious judgment and a real legal reach,” said Michael B. Mukasey, who was attorney general in the George W. Bush administration. “The upper reaches of the Justice Department should be calling people to account for this.”

His successors in the Obama administration counter that they are upholding a sacred principle: the right of every American to be free of religious bias in the workplace. “This was a profoundly personal request by a person of faith,” said Thomas E. Perez, assistant attorney general for civil rights, who compared the case to protecting “the religious liberty that our forefathers came to this country for.”

The Obama administration has gone to great lengths to maintain good relations with Muslims — while endorsing tough anti-terrorism tactics. Attorney General Eric H. Holder Jr. has called protecting the civil rights of Muslims a “top priority,” and his department has filed other legal actions on behalf of Muslims, including a corrections officer in New Jersey not allowed to wear a head scarf at work.

Perez denied any political motive in the Berkeley lawsuit, saying it was pursued in part to fight “a real head wind of intolerance against Muslim communities.” People in the rapidly growing Muslim community in Chicago’s western suburbs praised the Justice Department’s involvement.

“It rings the bell of justice that they will fight for a Muslim wanting to perform a religious act,” said Shaykh Abdool Rahman Khan, resident scholar at the Islamic Foundation mosque near Berkeley. “That certainly can win the hearts of many people in the Muslim world.”

Although the Justice Department, including during the Bush administration, and private plaintiffs have filed civil rights lawsuits on religious grounds, they have tended to be over issues such as whether employees can take off on the Sabbath or wear religious head coverings.

Cases involving the Muslim pilgrimage to Mecca, or hajj, are exceedingly rare, said Christina Abraham, civil rights director for the Chicago office of the Council on American-Islamic Relations.

19-day request

Khan arrived in November 2007 at Berkeley’s MacArthur Middle School, a faded brown brick building across from the public works department. She supplemented the math curriculum for sixth through eighth grades and helped prepare students for state tests.

Berkeley is a virtual speck on the map, a blue-collar village of about 5,000 people, rail yards, strip malls and ranch-style homes. The community, about 15 miles west of Chicago, is majority African American and Hispanic, and about 75 percent of its voters cast their ballots for Barack Obama.

The support for Obama’s Justice Department is much more mixed. Government lawyers, said longtime village President Michael A. Esposito, are “targeting a small community.”

“The school district just wanted a teacher in the room for those three weeks. They didn’t care if she was a Martian, a Muslim or a Catholic,” said Esposito, a political independent. “How come we bow down to certain religious groups? Why don’t we go out of our way for the Baptists or the Jehovah’s Witnesses?”

Khan, 29, who grew up in North Carolina and Arkansas, was happy in the job, said her lawyer, Kamran A. Memon. But she longed to make the hajj, one of the five pillars of the Islamic faith, which Muslims are obligated to do once. It would not have fallen on her summer break for about nine years.

“This was the first year she was financially able to do it,” Memon said. “It’s her religious belief that a Muslim must go for hajj quickly . . . that it’s a sin to delay.” Khan declined to comment.

In August 2008, Khan requested an unpaid leave for the first three weeks of December that year. The district said the leave was unrelated to Khan’s job and not authorized by the teacher union contract, according to court documents. Khan resigned in a letter to the school board.

“They put her in a position where she had to choose,” Memon said. “Berkeley has qualified subs. She didn’t feel her absence would cause any problem at all.”

In November 2008, Khan filed a religious discrimination charge with the Equal Employment Opportunity Commission, and last year, the commission found cause for discrimination and referred the case to the Justice Department.

Justice lawyers sued in December, the first lawsuit in a pilot project to increase coordination on employment discrimination between the department’s Civil Rights Division and the EEOC.

The suit argued that the district violated the Civil Rights Act by failing to accommodate Khan’s religious beliefs. By “compelling” Khan to choose between her job and religion, the lawsuit says, the district forced her discharge. The government is seeking back pay, damages and reinstatement for Khan, and a court order requiring Berkeley schools to find ways to accommodate religious practices.

A trial date has not been set.

Berkeley school officials declined to comment but said in court papers that Khan’s request was “unreasonable” and would have imposed an “undue hardship.”

Federal law requires employers to “reasonably accommodate” religious practices unless doing so would impose such a hardship. The Supreme Court has interpreted the provision narrowly, saying accommodations should be granted only if they impose a minimal burden on employers.

Hans von Spakovsky, a Justice Department civil rights official in the Bush administration, said, “No jury anywhere would think that a teacher leaving for three weeks during a crucial time at the end of a semester is reasonable.”

“This is a political lawsuit to placate Muslims,” he said.

Perez said the district committed “a very serious” violation by “summarily” rejecting Khan’s leave. He added that Bush officials critical of the department’s lawsuit had “amnesia” because they filed similar lawsuits. “I’m perplexed as to why suddenly, in the context of protecting Muslims,” there is opposition from officials in the former administration, he said.

Eugene Volokh, an expert on religions and the law at the UCLA law school, said he does not know of any cases involving a 19-day leave, though many courts have said employees can take off one weekend day on the Sabbath in some circumstances. “That’s a 52-day-a-year leave, just not all at once,” he said.

A number of courts have also upheld religious-based leaves of up to 10 days.

But Khan’s 19 consecutive days “cuts against her, makes it more of a hardship for the employer” said Volokh. He added, “I don’t want to suggest that this is an easy case for the Justice Department” to win.

In Berkeley, opinions on the lawsuit — and Khan — are divided.

“What about the kids’ rights?” said Mike Hasapis, owner of the local coffee shop. “Don’t they have a right to be educated? Three weeks off is a long time.”

Bernard Peters, whose daughter attends Khan’s former school, said the district “should have accommodated her. It’s her religion. Right is right.”

A few miles away at the Islamic Foundation, support for Khan was uniform. “If she was a Jew, would they treat her the same way?” Nabih Kamaan of Bloomingdale, Ill., asked as he arrived for Friday prayers.

“What if she was sick? What if she had a baby?” said Kamaan, who added that the lawsuit “is the right thing to do.”

AG Eric Holder should be dismissed for naked bias and incompetence.

First, the dismissal of the voter intimidation suit against the New Black Panther Party - where members of that organization were holding batons and threatening people trying to go in to vote at a polling place in Philadelphia, and now this - suing on behalf of a Muslim teacher who unreasonably (as a new employee no less) asked for 19 days off to make a pilgrimage to Mecca. And in case any here are unaware, the pilgrimage can be made at any point in a Muslim's life - there was no dire need, or Islamic law requiring her to accomplish it this year.

This suit is frivolous. She could've gone during summer vacation, or indeed, at any time of her life.

kronos wrote:This suit is frivolous. She could've gone during summer vacation, or indeed, at any time of her life.

The pilgrimage to Mecca (Hajj) is actually only required of able bodied Muslims who can afford to make the journey - and it is only required to be made once.

And while one can make the "lesser pilgrimage" or Umrah at any time of the year (like over summer vacation) the Hajj, which occurs from the 8th to 12th day of last month in the Islamic calendar, is still required if one can afford it.

Thing is, she could have done the Hajj after she had established herself as an employee - wait a couple of years - give good advance notice - and not be such a pain in the ass and then cry religious discrimination at the drop of a hat.

Justice Department And It's 'Priorities'

Neal Boortz
March 24, 2011

Let us count the ways of Barack Obama's Justice Department, run by the corrupt Eric Holder. The dismissal of the Black Panther case has continued to haunt Holder. When asked about the dismissal just as recently as this month, Holder said that the focus on this case demeans "my people." Maybe it's just me, but when you're the Attorney General of the United States your "people" are all American citizens .. not just the black ones.

Now the latest story that has the Justice Department in the spotlight is this: Justice Department sues on behalf of Muslim teacher, triggering debate. You may remember a story where a Muslim government school teacher wanted to take three weeks off of her job to take a pilgrimage to
Mecca. The school denied her request. Now Obama's Justice Department is suing, accusing the district of violating her civil rights by forcing her to choose between her job and her faith. Our corrupt Attorney General says that protecting the civil rights of Muslims is a "top priority" for his department.

So we are going to make Muslims a top priority of our Justice Department while ignoring the voter intimidation actions of "his people" (his words). Now... remember that story I told you about yesterday - the former SEIU official who called for the deliberate takedown of Wall Street, JPMorgan specifically, so as to cause another financial crisis? Well now we have Rep. Jason Chaffetz, a Republican from Utah, who has sent a letter to our corrupt Attorney General Eric Holder, asking for an investigation into Lerner's threat of financial "terrorism." Based on the track record of Obama's Justice Department, I doubt this letter will even make it past the mail room.

Not to go too far afield of the thread's topic, I very seriously doubt that Holder's Justice Dept will pay even the slightest attention to Chaffetz's letter about Stern's insane rant to cause another financial crisis with banks and Wall Street.

dblboggie wrote:Not to go too far afield of the thread's topic, I very seriously doubt that Holder's Justice Dept will pay even the slightest attention to Chaffetz's letter about Stern's insane rant to cause another financial crisis with banks and Wall Street.

It ain't off topic. It's about the Justice Dept. It's all game.

TexasBlue wrote:

dblboggie wrote:Not to go too far afield of the thread's topic, I very seriously doubt that Holder's Justice Dept will pay even the slightest attention to Chaffetz's letter about Stern's insane rant to cause another financial crisis with banks and Wall Street.

It ain't off topic. It's about the Justice Dept. It's all game.

Indeed! My bad... wail away!

dblboggie wrote:And while one can make the "lesser pilgrimage" or Umrah at any time of the year (like over summer vacation) the Hajj, which occurs from the 8th to 12th day of last month in the Islamic calendar, is still required if one can afford it.

Ah, I didn't know there was such a narrow time window (each year) for the Hajj.

Still, I can't find much sympathy. I'm a bit baffled as to why religion gets so much deference. She shouldn't be actively stopped from doing the Hajj, but why is it something that needs our active support and accommodation? I dunno, I just don't consider religion a valid reason for asking such extravagant allowances.

kronos wrote:

dblboggie wrote:And while one can make the "lesser pilgrimage" or Umrah at any time of the year (like over summer vacation) the Hajj, which occurs from the 8th to 12th day of last month in the Islamic calendar, is still required if one can afford it.

Ah, I didn't know there was such a narrow time window (each year) for the Hajj.

Still, I can't find much sympathy. I'm a bit baffled as to why religion gets so much deference. She shouldn't be actively stopped from doing the Hajj, but why is it something that needs our active support and accommodation? I dunno, I just don't consider religion a valid reason for asking such extravagant allowances.

I'm right there with you on this one. And I'm not so certain that it's all religions that get this much deference. I've seen any number of stories over the last few years or so where municipalities and states have been making various concessions to accommodate the beliefs of Muslims. I believe this to be a foolhardy thing to do.

dblboggie wrote:

kronos wrote:

dblboggie wrote:And while one can make the "lesser pilgrimage" or Umrah at any time of the year (like over summer vacation) the Hajj, which occurs from the 8th to 12th day of last month in the Islamic calendar, is still required if one can afford it.

Ah, I didn't know there was such a narrow time window (each year) for the Hajj.

Still, I can't find much sympathy. I'm a bit baffled as to why religion gets so much deference. She shouldn't be actively stopped from doing the Hajj, but why is it something that needs our active support and accommodation? I dunno, I just don't consider religion a valid reason for asking such extravagant allowances.

I'm right there with you on this one. And I'm not so certain that it's all religions that get this much deference. I've seen any number of stories over the last few years or so where municipalities and states have been making various concessions to accommodate the beliefs of Muslims. I believe this to be a foolhardy thing to do.

Makes me wonder how the Jews in this country got by all these years with no "special" preferences.

My notion of tolerance is passive:

I, as a tolerant man, will not stop you from practicing your religion. However: do not expect me to make any positive steps whatsoever to help you practice, and above all, do not expect extravagant efforts from me. Tolerance does not go that far. It's your religion, not mine.

You are more than welcome to do your Hajj. However, I will be forced to replace you. Your choice.

I wonder if there is actually a First Amendment issue here.

Seriously here;

His successors in the Obama administration counter that they are upholding a sacred principle: the right of every American to be free of religious bias in the workplace. “This was a profoundly personal request by a person of faith,” said Thomas E. Perez, assistant attorney general for civil rights, who compared the case to protecting “the religious liberty that our forefathers came to this country for.”

Does anyone really believe that this administration would go this far for a Christian right winger? For a person of the Jewish faith? I know there's no Hajj in either of those. But let's really examine this.

It's actions like this that feed those on the right that say that Obama is a closet Muslim. It just solidifies their arguments even if it's dumb. I also know that Obama probably didn't even have a hand in this at all. It's all on Holder.... who happens to be a lousy AG.

kronos wrote:My notion of tolerance is passive:

I, as a tolerant man, will not stop you from practicing your religion. However: do not expect me to make any positive steps whatsoever to help you practice, and above all, do not expect extravagant efforts from me. Tolerance does not go that far. It's your religion, not mine.

You are more than welcome to do your Hajj. However, I will be forced to replace you. Your choice.

I wonder if there is actually a First Amendment issue here.

This is my policy as well. I have no problem with one practicing their religion. In fact, I'm all for it and say more power to them - and that's as far as I go.

However, I don't believe this particular incident to be a First Amendment issue. She is not having her right to worship infringed. She is quite free to quit and go on her Hajj - no one is stopping her, it's her choice to make.

dblboggie wrote:However, I don't believe this particular incident to be a First Amendment issue. She is not having her right to worship infringed. She is quite free to quit and go on her Hajj - no one is stopping her, it's her choice to make.

That's not what I meant. I should've been more clear. Basically, I am wondering if this is a violation of the Establishment Clause--not the Free Exercise Clause. (These are the two complementary, but distinct, clauses of the 1A). If the school is required to go out of its way to allow her to do the Hajj, is this a step toward an establishment of religion? Does this not go beyond mere tolerance, and into positive governmental endorsement of a religion?

kronos wrote:

dblboggie wrote:However, I don't believe this particular incident to be a First Amendment issue. She is not having her right to worship infringed. She is quite free to quit and go on her Hajj - no one is stopping her, it's her choice to make.

That's not what I meant. I should've been more clear. Basically, I am wondering if this is a violation of the Establishment Clause--not the Free Exercise Clause. (These are the two complementary, but distinct, clauses of the 1A). If the school is required to go out of its way to allow her to do the Hajj, is this a step toward an establishment of religion? Does this not go beyond mere tolerance, and into positive governmental endorsement of a religion?

Hmmm.... At first blush, I would tend to say no. But only because I don't see a court decision in favor of this teacher as an endorsement of Islam so much as defining free exercise and an employer's responsibilities respecting this. But hey, I could be entirely wrong here. It's certain that I'm no lawyer or constitutional scholar.

kronos wrote:

dblboggie wrote:However, I don't believe this particular incident to be a First Amendment issue. She is not having her right to worship infringed. She is quite free to quit and go on her Hajj - no one is stopping her, it's her choice to make.

That's not what I meant. I should've been more clear. Basically, I am wondering if this is a violation of the Establishment Clause--not the Free Exercise Clause. (These are the two complementary, but distinct, clauses of the 1A). If the school is required to go out of its way to allow her to do the Hajj, is this a step toward an establishment of religion? Does this not go beyond mere tolerance, and into positive governmental endorsement of a religion?

No different from having the Ten Commandments displayed inside a City Hall.

The_Amber_Spyglass wrote:

kronos wrote:

dblboggie wrote:However, I don't believe this particular incident to be a First Amendment issue. She is not having her right to worship infringed. She is quite free to quit and go on her Hajj - no one is stopping her, it's her choice to make.

That's not what I meant. I should've been more clear. Basically, I am wondering if this is a violation of the Establishment Clause--not the Free Exercise Clause. (These are the two complementary, but distinct, clauses of the 1A). If the school is required to go out of its way to allow her to do the Hajj, is this a step toward an establishment of religion? Does this not go beyond mere tolerance, and into positive governmental endorsement of a religion?

No different from having the Ten Commandments displayed inside a City Hall.

I think those two things are very different. The Ten Commandments on display do not force anyone to do anything. They're just words, not a legally-mandated course of action.

No but it does represent government endorsement of the Abrahamic religions over everything else. It is not "making a law" but as with the other debate, I have to wonder whether letting such a think pass is using the wording of the law to defeat the spirit of the law.

The_Amber_Spyglass wrote:No but it does represent government endorsement of the Abrahamic religions over everything else.

True. Although I do not think the Constitution bars this on the city level of government. It bars it federally in the First Amendment, and then the Fourteenth Amendment extends the entire Bill of Rights down to the state level.

And of course, there are different levels of endorsement. A requirement to make extravagant allowances for religious practices goes much further than the mere display of words. Both of these fall far short of the kind of "endorsement" given Shi'a Islam in Iran and Wahhabism in Saudi Arabia.

It is not "making a law" but as with the other debate, I have to wonder whether letting such a think pass is using the wording of the law to defeat the spirit of the law.

Court decisions can effectively "make laws." Not literally, but the court's job is to interpret the law where there is doubt. A victory for this teacher would be if the court interpreted an existing anti-discrimination law such that refusing to give her time off to do the Hajj would be a violation of that law. Thus, we would have a law that endorsed religion.

The_Amber_Spyglass wrote:No but it does represent government endorsement of the Abrahamic religions over everything else. It is not "making a law" but as with the other debate, I have to wonder whether letting such a think pass is using the wording of the law to defeat the spirit of the law.

The spirit of the law was exactly as stated - Congress could not establish a state religion. That is extent of it. That same amendment covers the free exercise of religion and speech. It does not prohibit government officials or employees from making expressions of religion (our founders and early Presidents made such proclamations all the time); it only prohibits the establishment of a state church, nothing more, nothing less.

Many, many people have tried for decades to read something into the 1st Amendment that isn't there. At the heart of this is a complete misinterpretation of what Jefferson meant when he mentioned "a wall of separation between church and state" in a letter he wrote to the Danbury Baptists. You can read that letter HERE.