Katherine Kersten: TiZA vs. the search for truth

The battle over the role of Islam in a Minnesota public school is heating up again in a federal courtroom in St. Paul. The conflict began in January 2009, when the ACLU of Minnesota sued Tarek ibn Ziyad Academy -- a K-8 charter school with campuses in Inver Grove Heights and Blaine -- for violating constitutional prohibitions against government endorsement of religion.

TiZA since has fought tooth and nail -- erecting procedural barriers to prevent the ACLU from investigating what goes on behind its doors. The school's tactics have gone far beyond the usual rough-and-tumble of lawyers in our adversary system. Its chief tool has been attempted intimidation of all who would draw back the curtain on its secrets.

One of TiZA's first targets was the ACLU itself. A few months after the suit began, the school filed a $100,000-plus defamation claim, citing ACLU executive director Chuck Samuelson's simple statement that "[TiZA is] a theocratic school ... as plain as the substantial nose on my face." The court dismissed the claim.

In January 2010, the ACLU was back in court to seek a protective order, on grounds that intimidation by TiZA was discouraging potential witnesses from appearing. The ACLU filed affidavits by a former TiZA parent and a former TiZA staff member, who described what they interpreted as threats of violence against them. In her affidavit, the female staff member said that Asad Zaman -- TiZA's executive director -- had suggested after she displeased him: "We could just kill you, yeah tell your husband we'll do his job for him." (Zaman has no recollection of making such a statement, he said in an affidavit.) The court barred witness harassment or intimidation by either party.

In June 2010, the ACLU returned to court to quash what it described as yet another TiZA attempt to intimidate current and former employees from speaking about what they had seen at the public school. TiZA's "Staff Handbooks include a secrecy clause, and related threat of legal action for violating it," according to the ACLU's court filings. TiZA "wields [these provisions] as a sledgehammer to keep former employees quiet about what they saw at the school." As a result, "former TiZA employees have expressed fear about speaking to the ACLU."

According to the ACLU, TiZA's refusal to agree not to enforce the secrecy clause "sends the ominous signal that current and former employees who talk to the ACLU may be forced to defend themselves against a baseless, expensive lawsuit."

On Oct. 1, Judge Donovan Frank agreed -- affirming an order the ACLU had earlier won barring TiZA from enforcing the confidentiality clause in the context of this litigation.

The court's strong language in response to TiZA's actions was unusual: "[I]ntimidation and threats will not sit well with a fact-finder such as a jury." As a result of the school's actions, "[T]he Court may be required to draw adverse inferences about how TiZA operates as a result of TiZA's efforts to keep information about its operations secret. ... [TiZA's] behavior during the discovery process thus far ... has not been consistent with a good faith search for the truth."

The ACLU has characterized TiZA's recent actions regarding the secrecy clause as "only the last in a long line of intimidation efforts." Not quite. Last month, an attack was launched from a different front.

Several organizations that are not even parties to the lawsuit went to court in an attempt to disqualify the ACLU's lawyers -- Dorsey & Whitney -- from representing the ACLU on grounds that Dorsey personnel had previously communicated with Zaman about entities involved in the litigation. The organizations include the Muslim American Society of Minnesota (MAS-MN), MAS-MN Property Holding Corporation and the Minnesota Education Trust (MET).

What might they fear? Perhaps that Dorsey lawyers are in a position to prove that the scandal thus far -- and Zaman's role in it -- is just the tip of the iceberg. Dorsey lawyers had this to say in a Sept. 10 letter filed with the court:

"The ACLU believes Mr. Zaman's testimony relating to control of virtually every significant event at TiZA, MAS-MN, MET and MET's subsidiaries, coupled with his efforts to hide such control, constitute powerful evidence against TiZA's denials that it is a Muslim school and that it funnels state and federal money to other Muslim organizations."