To the American Civil Liberties Union, the 29 pages vindicate its two-year, $2 million legal standoff with a public school it accuses of promoting religion. To Tarek ibn Ziyad Academy, they are spin meant to hurt its chances at a fair trial.
On Friday, a federal judge will consider unsealing confidential records the ACLU wants released as part of its settlement with the Minnesota Department of Education, a co-defendant in the case. At stake is what kind of impact the records will have on the ACLU’s remaining case against TiZA, which is likely to go to trial in June.
The ACLU culled the 29 pages of settlement documents from thousands of pages of sealed court documents. It’s a trove that has led the group to complain that the charter school has secured too much secrecy in a lawsuit that pushes for more openness and oversight of Minnesota charters.
TiZA says that trove merely reflects the ACLU’s relentless demands for data and the school’s efforts to shield students, parents and employees. And it charges that the document release is an underhanded effort by the ACLU to pass a verdict before a likely June trial.
“To our clients, it’s all about the ACLU’s fiction and editorializing, and not the actual facts of the case,” said Shamus O’Meara, the lead counsel for the school.
The school has denied the ACLU’s charges of promoting religion, saying TiZA merely provides accommodations to Muslim students in keeping with federal law. It serves about 650 students on campuses in Inver Grove Heights and Blaine.
Neither party would discuss, even in general terms, what’s in the settlement document. A newsletter the ACLU sent its members calls it “a startling glimpse into the religious entanglement that is possible at a public charter school.” O’Meara said the ACLU is getting ahead of itself with such statements.
LONGSTANDING PROTECTIVE ORDER
Not long after the ACLU sued in 2009, TiZA asked for a protective order, which would allow documents the school and others turned over to the ACLU to remain sealed. Among other reasons, the school pointed to anonymous death threats its employees were receiving, likely because of accusations that the school was promoting Islam.
TiZA wanted all documents it handed over to be sealed, but a judge balked at such a broad request. The ACLU has since argued that even the more limited order has been applied too broadly.
“We’re talking 25,000 pages of public documents that are under seal now,” said Chuck Samuelson, the ACLU’s executive director in Minnesota. “That’s a lot of paper.”
The two sides are still grappling over disputed documents months after the so-called discovery phase of the case closed.
Since November, TiZA has turned over some 177,000 pages of documents; the ACLU is still seeking thousands of files from TiZA founder and director Asad Zaman’s laptop.
The school’s attorneys contend these are excessive data requests that verge on harassment.
“Mr. Zaman no longer runs TiZA. He works for Plaintiff reviewing mindless document demands and preparing for depositions,” attorney Mark Azman wrote in a filing earlier this week.
In its court filings, the ACLU counters that TiZA is stalling on document requests.
Samuelson says charter schools in the state have long operated with too little oversight, run by board members selected among parents and supporters, with state-approved overseers that did a modicum of overseeing. The ACLU lawsuit is changing that, he said.
No money is changing hands in the ACLU’s settlement with the state Education Department. Instead, the department has agreed to adopt a new form in which charter schools will detail how they keep religion out of schooling each year.
Then, there’s the 29-page document, in which the ACLU, the state and TiZA’s authorizer, Islamic Relief-USA, outline what they deem undisputed facts in the case. Islamic Relief also settled with the ACLU, and in a filing this week, an attorney for the nonprofit said the statement is factual and well supported by court records.
The ACLU says the document is a long-awaited chance to share with the public the findings of its investigation into the school. Without its release, there will be no settlement between the ACLU and the Education Department, and the state presumably will remain a defendant in the case.
And there will be no release unless Judge Donovan Frank rules to unseal the supporting records.
An Education Department spokeswoman did not return a call seeking comment.
CONCERN OVER TAINTED JURY POOL
In a flurry of court filings over the past week, TiZA and other parties have opposed the release. Because it cites the sealed documents in question, TiZA’s memo in opposition to the release is itself sealed.
Attorneys for the Muslim American Society of Minnesota and several other groups that leased facilities to the school and had to turn over documents in the case also argued against the release. They called the settlement a “one-sided, cherry-picked, false, misleading, irrelevant and foundation-lacking release of information to the potential jury pool” that would taint the looming trial.
“By allowing the ACLU to release its propaganda before trial, this Court would be approving of an unfair trial of this case outside of court,” the memo reads.
Zaman, TiZA’s founder and a defendant in the case, says the claims in the document carry little weight: The ACLU is bent on making the school look bad, and the Department of Education is desperate to dodge the trial.
He said the school still receives anonymous harassing messages weekly, and such messages intensify whenever there’s a court filing and the resulting media coverage.
“We are not trying to hide anything from the public,” Zaman said, adding that it is TiZA that wants to let the public decide the case in a jury trial.
The ACLU says Frank should decide the case because the group is not seeking damages but rather the return of taxpayer dollars to the state.
The ACLU expects it will prevail in a bid to have a bench trial, Samuelson says, which renders moot the argument that a release of the 29-page document will taint the jury pool.
The order sealing the documents does not extend to the ACLU-TiZA trial itself.
The judge could seal some of the documents that will become evidence in the trial, says William McGeveran, a data-privacy expert at the University of Minnesota Law School.
“To have a document stay sealed in the courtroom, you’re looking at a very high threshold,” he said, especially in a suit involving a public school. “I don’t think that’s likely in this case.”
