THE BLOG

The United States Department of Justice Turns the Clock Back Sixty Years to Reinstate "Separate but Equal"

06/08/2015 04:07 pm ET | Updated Jun 08, 2016

Can an African American judge hear an employment discrimination lawsuit involving African Americans? Can a female judge hear a sex discrimination lawsuit? Can a gay judge hear a case relating to the rights of gay citizens?

These questions are not difficult, and they border on the insulting and demeaning. The law is the law, and judges are charged with upholding it regardless of the identity of the parties or their own identity profile.

This point is not an unfamiliar one, and every court and reasonable observer to consider the question has come down on the same side. Four decades ago, the late Judge Leon Higginbotham issued an influential opinion explaining why, as an African American judge with a history of involvement in the Civil Rights movement, he should not have to recuse himself from presiding over racial discrimination cases. If he were still with us, Judge Higginbotham would be outraged to learn that the U.S. Department of Justice ("DOJ") ordered an Iranian American immigration court justice, Ashley Tabaddor, to indefinitely recuse herself from hearing any cases involving Iranians.

All other immigration judges are assigned cases on a random basis, but since this 2012 order Judge Tabaddor has been assigned cases using race-based criteria. DOJ has defended the separate standard imposed on Judge Tabaddor, by maintaining there is no injury, so long as Judge Tabaddor is assigned the same number of cases as other judges. As it was in Brown v Board of Education, 347 U.S. 483 (1954), decided by the Supreme Court over sixty years ago, "the doctrine of 'separate but equal' has no place at DOJ.

DOJ's disqualification of Judge Tabaddor from all cases involving Iranians is premised on Judge Tabaddor being a member of the Iranian American community and her participation in community service and professional activities outside the courtroom. As just two examples, Judge Tabaddor is an adjunct professor at the UCLA School of Law and also serves as an advisory member of the Iranian American Bar Association. The ongoing legal battle with DOJ over whether an American judge of an identifiable ethnic heritage can participate in a culturally specific community or civic activity, without automatically being presumed to be biased, concerns not only the harm done to Judge Tabbador, but is a test case for whether there are limits on the freedom of association of federal judges and similarly, whether they may be barred from hearing certain cases, based on those associations and/or their race, religion, sex or other discriminatory criteria. Indeed, the outcome of Judge Tabddor's lawsuit should be of interest not only to Americans of Iranian heritage but to all Americans.

DOJ's treatment of Judge Tabaddor is unprecedented and has no support in law or policy. Quite the opposite, DOJ's conduct violates its own regulations. The hypocrisy of the position taken by DOJ in Judge Tabaddor's case stands in strong contrast to DOJ's own stated policy to appoint judges who reflect the diverse racial and ethnic communities they serve.

Yet, DOJ's continued efforts to recuse Judge Tabaddor from hearing any cases involving Iranians and its' persistence in disparaging her lawsuit against this discriminatory act are contradictory and prejudiced. Indeed, DOJ's recusal of Judge Tabaddor cannot be justified as an attempt to uphold legal impartiality; rather it is an explicit act of discrimination against an American citizen of Iranian heritage.

The timing of the DOJ's recusal order is even more troubling. It immediately followed an invitation issued to judge Tabaddor by the White House Office of Public Engagement in 2012 to attend a "Roundtable with Iranian American Community Leaders." Moreover, Judge Tabaddor had sought and received explicit permission from DOJ to attend the White House event in her personal capacity. Despite previously approving Judge Tabaddor's attendance, shortly after the meeting Jeffrey A. Rosenblum, then Chief Counsel of the Employee Labor Relations Unit in the Office of General Counsel at DOJ, informed Judge Tabaddor that she should recuse herself from all cases involving Iranians. When she objected and questioned the basis of this "recommendation" with Rosenblum as well as with her direct supervisor, Thomas Y.K. Fong, an Assistant Chief Immigration Judge, she was instructed to recuse herself from all cases involving Iranians. This meant walking away midstream from a number of cases involving Iranians that had progressed well beyond the initial stages. This order remains in effect to this day so Judge Tabaddor continues to be singled out and assigned cases based on her race and ethnicity and the national origin of the parties involved. After an extended administrative process, which only saw DOJ dig in its heels, Judge Tabaddor filed suit in federal district court challenging the Department's actions as discriminatory and in derogation of constitutional principles. Additional legal and factual background on Judge Tabaddor's case can be found here: http://www.cooley.com/tabaddor.

DOJ's position in Judge Tabaddor's case, if allowed to stand, establishes a very slippery slope, in that it challenges the impartiality and judicial independence of immigration judges across the board. Compare this case with U.S. Judge (and former U.S. Attorney General), Michael Mukasey, who declined to recuse himself from the 1993 World Trade Center bombing case, refuting that his active involvement in the Jewish community compromised his impartiality as a judge. Judge Mukasey acknowledged that he, like other judges before him facing allegations of impartiality, drew "both authority and inspiration" from then-U.S. District Judge Higginbotham's opinion in Pennsylvania v. Local Union 542, Int'l Union of Operating Eng'rs, 388 F. Supp. 155 (D. Pa. 1974). In a famous passage from this seminal case, Higginbotham poetically and persuasively articulated the basis for his decision:

"I am pleased to see that my distinguished colleagues on the bench who are Jewish serve on committees of the Jew[ish] Community Relations Council, on the boards of Jewish publications, and are active in other affairs of the Jewish community. I respect them, for they recognize that the American experience has often been marred by pervasive anti-Semitism. I would think less of them if they felt that they had to repudiate their heritage in order to be impartial judges. Many Catholic judges have been active in their church, as have been Episcopalian and other Protestant judges. It would be a tragic day for the nation and the judiciary if a myopic vision of the judge's role should prevail, a vision that required judges to refrain from participating in their churches, in their nonpolitical community affairs, in their universities. So long as Jewish judges preside over matters where Jewish and Gentile litigants disagree; so long as Protestant judges preside over matters where Protestants and Catholic litigants disagree; so long as white judges preside over matters where white and black litigants disagree, I will preside over matters where black and white litigants disagree."

Similarly, Judge Tabbador's lawsuit against DOJ challenges the indefinite order of recusal from hearing cases involving Iranians as racially discriminatory under Title VII of the Civil Rights Act of 1964. Given her experience and integrity, and her dedication to the American justice system, it makes little sense that DOJ does not afford Judge Tabaddor the same fairness and presumption of impartiality given to a Mexican American judge who decides cases pertaining to Mexican immigrants or a Catholic judge who hears cases on abortion rights.

As President Obama said in his eloquent speech in Selma last month, "[i]t's the idea held by generations of citizens who believed that America is a constant work in progress; who believed that loving this country requires more than singing its praises or avoiding uncomfortable truths. It requires the occasional disruption, the willingness to speak out for what's right and shake up the status quo." It is in this spirit that the Public Affairs Alliance of Iranian Americans recognizes Judge Tabaddor's determination to expose and fight against racially motivated discrimination and profiling in all its forms.

Judge Tabbador is not a political activist. She attended a community outreach meeting at the White House, hardly a reflection of bias. Yet the subsequent order requiring her to recuse herself indefinitely from all cases involving Iranians suggests that DOJ believes that all Americans of Iranian heritage must be biased and therefore cannot be trusted to carry out their duties with impartiality. Such stereotyping is the definition of prejudice. The long-term consequences of such a rule are far-reaching for public servants like Tabaddor, who will be restrained from engaging in their communities and celebrating their heritage. At its core, DOJ's conduct undermines its' credibility as a guardian of civil rights and indeed the most fundamental tenets of our Constitution. There is no place for separate but equal in our great nation, particularly not at the Department of Justice.

Austin is the executive director of the Public Affairs Alliance of Iranian Americans (PAAIA). Shehabi is a former U.S. DOJ Attorney and a member of the Board of Directors of PAAIA as well as a member of the Advisory Board of the Iranian American Bar Association