Conservative columnist Katherine Kersten finds unlikely ally in the ACLU
On the afternoon of March 3, 2008, Katherine Kersten waited in the parking lot outside an Inver Grove Heights school, stalking Muslims.
The school building housed both Tarek ibn Ziyad Academy—a K-8 school that catered primarily to immigrants—and the Muslim American Society of Minnesota, a religious nonprofit group that she'd criticized in her Star Tribune column.
When the school day officially ended at 3:30 p.m., she noticed, few students actually left the building. Instead, the pupils began to pour from the doors around 4:15 p.m. Then they boarded school buses—Kersten counted six—that would carry them home.
"The students have Islamic studies till 4:15," a bus driver explained.
Six days later, Kersten publicly accused the school of improperly mixing church and state. As a charter school, TiZA received public money and was supposed to be non-sectarian.
"Are taxpayers footing bill for Islamic school in Minnesota?" the headline to Kersten's column screamed.
The founders of the school were imams, Kersten wrote, and the school's sponsor, Islamic Relief USA, belonged to a parent group that Israel had accused of ties to Hamas.
Kersten's criticism quickly inspired a backlash. "The school is not a religious school in any way," said Wayne Jennings, superintendent of High School for Performing Arts, a charter school in St. Paul. A lifelong member of Americans for Separation of Church and State, Jennings agreed to serve as the liaison between the school and its sponsor after researching both thoroughly and concluding that the school was playing by the rules.
But the ACLU wasn't so sure. Five days after Kersten's column was published (she did not respond to requests for comment), Charles Samuelson, director of the American Civil Liberties Union of Minnesota, fired off a letter to the school's principal, Asad Zaman. "We ask that you please review the situation and take the necessary steps to ensure that TiZA Academy does not impermissibly promote or endorse religion or religious activities," the letter read.
On April 8, a month after her original column, Kersten ran a follow-up piece—20 questions with Zaman. In language that was polite, if a bit terse, Zaman answered Kersten's accusations about the school's bus schedule and prayer gatherings.
Four days later, the Star Tribune reported that TiZA had received threatening phone calls. Police monitoring of the school stepped up, and the Minnesota chapter of the Council on American-Islamic Relations asked the FBI to look into the threats.
Politicians flung their own accusations. "I call into question the integrity with which Katherine Kersten levels her complaints," said Carla A. Bates, a candidate for Minneapolis School Board. "I think it's Islam that she doesn't like, and she is going to put a successful school through the ringer because she doesn't like how it looks, sounds, or behaves."
Rep. Mindy Greiling, chair of the state's K-12 finance committee, called for Kersten to be fired, and 582 people signed an online petition demanding her removal.
"I've always found it offensive to focus on the Muslim school when they are such a maligned minority in our country," Greiling says. "We always have somebody, whether it's the blacks, the gays and lesbians, and now the minority du jour seems to be Muslims."
On May 19, Kersten wrote about TiZA again—and this time, she'd found a mole. Substitute teacher Amanda Getz, who was active in Republican politics during college, reported her experience at the school, implying that it was, as Kersten had suggested, state-sponsored religion.
On the same day, the Minnesota Department of Education published the findings of an investigation into Kersten's allegations: The school needed to revise its bus and prayer policies—but nothing more. When a television camera crew arrived at TiZA to verify the story, a school employee wrestled the cameraman to the ground.
The story went viral: The Associated Press and Agence Free Press picked it up, and a national Council on American-Islamic Relations spokesman appeared on The O'Reilly Factor to downplay the accusations. By June, Kersten was trumpeting her tale in The Wall Street Journal.
While Kersten stirred the pot, TiZA worked with the Department of Education to fix its problems. Then, when the story gained national attention, the school hired veteran public relations operative Blois Olson to handle the media.
Meanwhile, the ACLU of Minnesota was quietly continuing its painstaking investigation, poring over tax documents and property records. At the same time, it looked at other charter schools with religiously affiliated sponsors: Friends of Ascension, Volunteers of America, the YMCA. "We found some problems—but not like TiZA," Samuelson says.
While Kersten had impugned the school's instructional program, the ACLU quickly focused elsewhere. "When we started looking at the structure, we realized that Katherine Kersten had missed the important stuff," Samuelson says.
By January 2009, the ACLU was ready; its lawsuit laid out 27 ways that TiZA was endorsing Islam—a violation of Minnesota charter school law, the state constitution, and the Constitution of the United States. Not only did the school appear to be advocating Islam through prayer, dress code, menu, and calendar, the school's finances were horribly entangled with a religious organization, the Muslim American Society of Minnesota, which also shared a building with the school.
MAS-MN functioned as a local affiliate of the national Muslim American Society, an organization that promotes Islam. In 2006, MAS-MN leaders issued a fatwa prohibiting Muslim taxi drivers from transporting passengers who carried alcohol. A year later, Muslim checkers at Target began refusing to scan pork products.
TiZA's muddled finances were the real problem, according to the ACLU lawsuit. MAS-MN owned TiZA's Inver Grove Heights campus. Zaman served both as president of TiZA and vice president and spokesperson for MAS-MN. What's more, he controlled the books for MAS-MN Minnesota Property Holding Corp., an organization that had been set up to receive money from the state for the school. The holding company donated rent for TiZA to MAS-MN.
Other charter schools also had religious sponsors, and paid rent to religious organizations. The problem with TiZA, Samuelson explains, is that the same people ran the school and owned the building—an arrangement prohibited by charter school law. "Hence the need for these shell corporations," Samuelson says. "The issue with TiZA, frankly, was the incredible commingling of church and state. It's a theocratic school. It is as plain as the substantial nose on my face."
The ACLU wants TiZA to give the money it has received from the state back to the Department of Education.
TiZA claims most of the problems highlighted in the ACLU suit have already been corrected—and had been even before the lawsuit was filed. Saman left the MAS-MN board last August, months before the ACLU suit. Why did he hold both positions in the first place? "It's a small community," Olson says. "It would be the same issue if you had the principal of a Catholic school being on a parish council." The school's attorney, Erick Kaardal, argues that the state Department of Education—not federal court—is the appropriate venue for examining the remaining complaints. What's more, he says, the ACLU doesn't have the authority to sue TiZA, because it isn't representing a specific taxpayer or a member of its own organization. Kaardal has asked the federal judge to dismiss the case. The judge is expected to decide on the legal standing by summer's end.
In the meantime, Kersten's allies are already declaring victory. "Kathy was the victim of a tremendous amount of unwarranted abuse in connection with her columns," says Scott W. Johnson, a Minneapolis attorney and conservative Powerline blogger. "I thought that the lawsuit vindicated Kathy's columns."
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