‘Civil Rights’ Gone Wild


‘Civil Rights’ Gone Wild

Jan 3, 2011 5 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.

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.

The current cases involve two schools in upstate New York that supposedly discriminated against one male student who wore a pink wig and makeup and another male student who wore a wig and stiletto heels and wanted to be able to “dress like a woman.” These students had violated the schools’ common-sense dress codes and were told to change clothes and remove the makeup. That prompted the Civil Rights Division to come knocking. The boys were being treated “differently” from female students, and such differential treatment, the division asserted, “implicate[s] the civil rights laws that we enforce.”

The civil-rights statutes prohibit sex discrimination. Today’s division wants to equate sex with sexual orientation or, as it said in one letter, “perceived sexual identity.” Yet the division cannot make even a weak showing that such issues fit within the definition of discrimination prohibited by the relevant statutes, which were passed long before the gay-rights movement had even begun.

As Roger Clegg of the Center for Equal Opportunity observes: “The Obama administration apparently believes that it is unconstitutional for high schools to have a dress code that makes distinctions between what is appropriate dress for males and what is appropriate dress for females.” Clegg also points out that the division’s attempt to equate “sexual-orientation discrimination” with sex discrimination, by asserting that the use of sexual “stereotypes” is an instance of the latter, is nothing but naked bootstrapping (if you will pardon the expression). But legal justification or not, in the eyes of the warped and silly (but dangerous) lawyers inhabiting the division, barring boys from wearing stiletto heels is a serious civil-rights violation.

There is no question that schools should not allow bullying or violence of any kind. But it’s ludicrous to launch federal investigations of schools for having dress codes that differentiate between males and females, or to equate such dress codes with “sex discrimination.”

The division also wants to literally make a federal case out of derogatory name calling — something that can (and should) be handled at the local level. If you, as an immature teenager, make fun of another boy because he “dyed his hair [and] wore makeup and nail polish,” or you otherwise engage in what the division terms “teasing,” look out. The division may force your school to put you in a “training” class to educate you as to how you are discriminating on the basis of “gender identity, gender expression, and sexual orientation.” That’s what the division did in its settlement agreement with New York’s Mohawk Central School District.

The bizarre enforcement policies of today’s Civil Rights Division have nothing to do with ensuring real civil-rights protections. Instead, the division’s radical lawyers seem determined to use the agency’s power to impose their peculiar cultural and social views on the rest of us.

Oddly, one of those views is that discrimination by some racial groups is perfectly acceptable. This explains why the Justice Department dismissed the New Black Panther Party voter-intimidation case it had already won. It is why this administration is studiously not pursuing cases like the one filed against Southern Illinois University in 2006 for maintaining a paid fellowship program that categorically excluded white males from applying. It was the Bush administration’s race-neutral enforcement policy in such cases that enraged the radical civil-rights organizations that dominate Washington and formed the basis for much of the unfair and misleading criticism of that administration’s enforcement of civil-rights laws.

One can only hope that the public will soon take notice of the Obama administration’s abuse of its civil-rights enforcement function. Otherwise, the division’s “enlightened” erosion of our culture and our real civil rights will proceed apace.

Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

First appeared in National Review Online