For all of the claims made about supposed “politicalization” in the Civil Rights Division during the Bush administration, court decisions have consistently supported the legal positions taken by Bush’s political appointees, and rejected the legal positions of the career lawyers who inhabit the Division. A recent decision by the U.S. Court of Appeals for the Third Circuit provides one more example of how the political appointees constantly had to squash the extreme, out-of-the-mainstream, precedent-ignoring views being advanced by career lawyers in the Division.
In 2004, career lawyers within the Employment Litigation Section proposed that the Division sue the City of Philadelphia for violating Title VII of the 1964 Civil Rights Act by denying a Muslim female police officer the right to wear a head scarf while on duty. The political appointees in the leadership of the Division rejected the recommendation on the grounds that the police department had the legal right to adopt reasonable dress requirements for its uniformed personnel that present the public with the image of an impartial and professional police force. This rejection was based on prior precedent, including a key Supreme Court case. Career lawyers, however, wanted to effectively disregard these decisions.
After the Civil Rights Division refused to file suit, the Muslim police officer, aided by the ACLU, elected to sue the City of Philadelphia anyway. Not surprisingly, the federal district court dismissed her lawsuit. And several weeks ago, on April 7, 2009, the Third Circuit upheld the dismissal in Webb v. City of Philadelphia. Echoing the decision of the Civil Rights Division’s political appointees, the Third Circuit approvingly cited the Police Commissioner’s explanation for the City’s rule that does not allow religious symbols or religious garb as part of a uniform: “[I[t is critically important to promote the image of a disciplined, identifiable and impartial police force by maintaining the Philadelphia Police Department uniform as a symbol of neutral government authority, free from expressions of personal religion, bent or bias.”
So once again, the legal opinion of “nonpartisan,” “objective” career lawyers at the Civil Rights Division was wrong, and the supposedly “political” legal opinion of the Bush appointees was correct, according to both a federal district court and a federal court of appeals. Somehow, I doubt anyone in Congress will be interested in acknowledging this fact.