Karen Lugo

The head of the Department of Justice’s (DOJ) Civil Rights Division, Tom Perez, is taking strong steps to protect the rights of Muslims in America “because they are being targeted for abuse.” A new alliance between the DOJ and Equal Employment Opportunity Commission (EEOC) is apparently giving him firepower to do just that.

First-year Muslim math teacher Safoorah Khan of the Berkeley School District in Illinois, insisted on 19 days off during grading period to go on hajj, or pilgrimage – and she has won her case without ever having to go to court. The small-town school district “cried uncle” after a three-year fight with the combined forces of the DOJ and the EEOC. Khan, who had resigned her position when both her requests for unpaid leave were denied by the school district, received $75,000 in back pay, compensatory damages and court costs. The settlement, which is subject to federal court approval, poses many disturbing questions for a society based upon rules and processes of law - rather than government-selected minority causes.

First, this extraordinary result suggests a new standard for other government workplace religious observance requests, since the longest religious leave previously championed by the EEOC and the DOJ was a 10-day period for the Worldwide Church of God. The Supreme Court has generally been unsympathetic to these employee petitions, denying them as demanding too much of employer business considerations. As these cases have had full hearing in the courts - rather than being hammered out between behemoth government agencies and a village school district - respect for the employer’s right to deny requests that impose “undue hardship” on business operations are factored into the legal determination.

Another critical legal consideration that this settlement seems to have skipped over is the necessary test as to whether the employee request is a reasonable one. Judicial deliberations over how to apply the Title VII of the Civil Rights Act anti-discrimination provisions turn on what is deemed a reasonable balancing of the employer concerns and employee’s “sincerely felt religious obligations.”

This DOJ-driven settlement fails both legal and sociological reasonableness tests on grounds other than Khan’s lack of tenure and her request to leave during grading period. First, her demand of 19 days for hajj, one of the five pillars of Islam and obligatory just once in the lifetime of most Muslims, was excessive according to Islamic website guidance suggesting a minimum of eight days vacation period for the four to five day ceremonial rituals in Mecca, with an outside recommended time off of two weeks.

Second, the hajj is observed during the last month of Muslim lunar calendar, so hajj rituals would have occurred during summer vacation approximately a decade from now. There was no reason that Khan had to go during her first year of teaching.

However, what is most disturbing about this case and its portent for preferential treatment of Muslims under Attorney General Eric Holder’s DOJ is the degree to which the federal government’s heavy hand is seen tipping the scales. This unusual DOJ intervention on behalf of a Muslim complainant fits right into the DOJ’s Civil Rights Division’s official Muslim outreach program. As featured on the DOJ website, the program is described as placing “a priority on prosecuting bias crimes and incidents of discrimination against Muslims” and others “perceived to be members of these groups.”

Even the fact that this was the first partnership demonstrating “closer collaboration” between the EEOC and the DOJ “to vigorously enforce Title VII anti-discrimination laws against state and local governmental employers” is an ominous development. When two fully funded federal agencies staffed with armies of the nation’s most zealous attorneys land on local agencies waving this settlement as the prototype for Muslim religious accommodation, the results will likely be driven by placating the Justice Department, rather than a pursuit of legal processes designed to provide justice.

It is even more alarming to consider that this official outreach program specially recognizing Muslims is overseen by a spokesperson for Khan’s hajj case, Assistant Attorney General for the Civil Rights Division of the DOJ Thomas Perez. Perez’s potential for activism is underscored by former voting rights section DOJ attorney J. Christian Adams’ account of the Assistant AG’s role in burying the Black Panther voter suppression scandal.

In fact, just days ago, Perez and other DOJ officials dialogued with Islamist activists who lobbied “for cutbacks in anti-terror funding, changes in agents’ training manuals, additional curbs on investigators and a legal declaration that U.S. citizens’ criticism of Islam constitutes racial discrimination.” Perez notably ignored the call for restraint on First Amendment free speech rights and was quoted as saying, “There will be times where we have honest differences of opinion, but if we don’t talk and don’t actively listen and if we don’t reflect and recalibrate where necessary, then we won’t be doing our job, and you have our continuing commitment to that end.” At the end of the session, Perez is said to have “climbed the stage to embrace Imam Magid, who was born in Sudan and trained at a Saudi fundamentalist seminary.”

Another exhibit in this demonstration of agenda-driven DOJ priorities, is the explosive revelation earlier this year detailing whistleblower reports that political appointees at the DOJ were responsible for nixing the prosecution of CAIR and other un-indicted co-conspirators implicated in the government’s successful case against Hamas financiers in the Holy Land Foundation trial.

When the top government law enforcement agency becomes a lobbying arm for grievance factions, the rule of law takes second place to the pursuit of political ends and social justice agendas. Holder’s DOJ seems to have been captured by ideologues who best serve aggrieved minority Americans. It is beyond time for President Obama to fulfill his duty to restore the DOJ’s stated mission of “ensuring fair and impartial administration of justice for all Americans.”


Karen Lugo

Karen Lugo is the Founder of the Libertas-West Project and a co-director of the Center for Constitutional Jurisprudence.