The Justice Department’s Civil Rights Division has no time to pursue voter-intimidation cases against black defendants. But it has plenty of time to pursue local school boards that make common-sense decisions about student dress codes and accommodations for teachers’ religious practices.
The contrast between what the division does and doesn’t regard as important reveals a radical ideology on the loose — and the willingness of this administration’s political appointees to abuse the civil-rights laws they are supposed to enforce.
In the latest outrage, the Civil Rights Division is suing the board of education in the leafy Chicago suburb of Berkeley, Ill. The board’s offense? It would not allow a middle-school computer-math-lab teacher to take off three weeks during December’s crucial end-of-semester course reviews and final exams in order to make a pilgrimage to Mecca.
DOJ filed the suit under Title VII of the Civil Rights Act of 1964, which prohibits an employer from discriminating on the basis of race, color, sex, national origin, or religion. Federal regulations require an employer to provide reasonable accommodations for the religious practices of employees unless doing so would “result in undue hardships on the conduct of its business.” In 1977, in TWA v. Hardison, the Supreme Court held that it is an “undue hardship” if the employer has to “bear more than a de minimis cost” in order to provide the accommodation.
The courts have reasonably concluded that employers must accommodate certain religious practices, such as letting teachers take a day off for a religious holiday like Rosh Hashanah, or permitting devout Muslims to briefly absent themselves during the day to pray. Federal regulations identify additional examples of reasonable religious accommodations deemed to be of minimal cost to employers. These include voluntary swaps with other employees who are willing to work on a particular day, flexible arrival and departure times, staggered work hours, and new job assignments and lateral transfers. No rational observer, though, would construe a request for a three-week Hajj during the run-up to finals as a reasonable accommodation.
The Justice Department will probably argue that the school board would incur only a de minimis cost in granting three weeks of unpaid leave to this untenured teacher, who had been employed by that school for only a year. But if a teacher were to leave for three weeks at the end of a semester, the cost to the students could be quite heavy. That is the time when teachers are responsible for reviewing with their students all that they have been taught and preparing them for the finals. That is not a job that a substitute teacher can effectively handle. Substitutes typically don’t know the syllabus, the projects assigned, the readings required, or any other details of a four-month-long course. Assuming that the students’ education is the top priority of the school board, it is simply not reasonable to let a teacher leave during this crucial period.
In this case, the contract with the local teachers’ union stipulates accommodations for shorter religious holidays but not, apparently, for such a lengthy pilgrimage. By acting fully within the negotiated terms of that agreement, the school board had provided all reasonable accommodations required by law. In the TWA case, the Supreme Court held that an employer cannot be faulted for acting according to a seniority system set out in a collective-bargaining agreement since that agreement represents a significant accommodation of the religious and secular needs of all covered employees. In this case, the school board acted within its union contract and provided all the religious accommodations it was required to offer under applicable federal law and regulations. The Justice Department’s view here goes far beyond what is legally required.
Extremists in the Civil Rights Division are pouncing on other school policies as well. When it was first formed in the 1960s, the division pursued cases of real discrimination — cases where, for example, black students were harassed or intimidated or provided with intentionally inferior education. These days, the division believes that prohibiting boys from wearing makeup, nail polish, and high heels is sex discrimination.