American Civil Liberties Union of Minnesota v. Tarek ibn Ziyad Academy et al

Filing 606

MEMORANDUM OPINION AND ORDER. 1. TiZA Defendants' Motion for Summary Judgment (Doc. No. 521 ) is GRANTED IN PART and DENIED IN PART as follows: a. Plaintiff's claims against defendants Mohammed Farid, Moira Fahey, and Mona Elnahrawy are DISMISSED insofar as they are asserted against them in their individual capacities. b. Plaintiff's claim for a refund of student aid is DISMISSED insofar as it is as asserted against defendants Asif Rahman, Mahrous Kandil, Mona Elnahrawy, Moira Fahey, and Mohammed Farid. 2. Islamic Relief's Motion for Summary Judgment on Cross-Claim for Indemnification as Against TiZA (Doc. No. 509 ) is GRANTED IN PART. a. The portion of Islamic Relief's motion directed at its cross-claim for ind emnification is GRANTED in that the Court finds that Islamic Relief is entitled to indemnification under the Contract. b. The Court defers ruling on the issue of whether the settlement between Islamic Relief and Plaintiff was reasonable and made in g ood faith and Islamic Relief's request under Rule 54(b) pending the motion for confirmation of settlement. 3. The Commissioner's Motion for Summary Judgment as to Plaintiff's Claim and on Cross-Claim for Indemnification as Against TiZA (Doc. No. 507 ) is GRANTED IN PART and DENIED IN PART as follows: a. The portion of the Commissioner's motion directed against Plaintiff's claims is DENIED WITHOUT PREJUDICE AS MOOT. b. The portion of the Commissioner's motion directed at its cross-claim for indemnification is GRANTED. (Written Opinion). Signed by Judge Donovan W. Frank on 4/20/2011. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

American Civil Liberties Union of
Minnesota,

Civil No. 09-138 (DWF/JJG)

Plaintiff,
v.

MEMORANDUM
OPINION AND ORDER

Tarek ibn Ziyad Academy; Islamic Relief
USA; Brenda Cassellius, in her capacity as
Minnesota Commissioner of Education;
Asad Zaman; Asif Rahman; Mahrous
Kandil; Mona Elnahrawy; Moira Fahey;
and Mohamed Farid, individually and in
their capacities as Directors of
Tarek ibn Ziyad Academy,
Defendants.
_______________________________________________________________________
Christopher Amundsen, Esq., Ivan M. Ludmer, Esq., Peter M. Lancaster, Esq., Dustin
Adams, Esq., Katie C. Pfeifer, Esq., Mark D. Wagner, Esq., and Shari L J. Aberle, Esq.,
Dorsey & Whitney LLP; and Teresa J. Nelson, Esq., American Civil Liberties Union of
Minnesota, counsel for Plaintiff American Civil Liberties Union of Minnesota.
Erick G. Kaardal, Esq., and William F. Mohrman, Esq., Morhman & Kaardal, counsel for
Applicants for Intervention.
Shamus P. O’Meara, Esq., Mark R. Azman, Esq., and Margaret Ann Mullin, Esq.,
Johnson and Condon, PA, counsel for Defendant Tarek ibn Ziyad Academy, Asad
Zaman, Asif Rahman, Mahrous Kandil, Mona Elnahrawy, Moira Fahey, and Mohamed
Faird, as to all claims asserted against these Defendants.
Sarah E. Bushnell, Esq., and Max H. Kiely, Esq., Kelly & Hannah, PA; and Scott J.
Ward, Esq., and Timothy R. Obitts, Esq., Gammon & Grange, PC, counsel for Defendant
Islamic Relief USA.
Kathryn M. Woodruff and Tamar N. Gronvall, Assistant Attorneys General, Minnesota
Attorney General’s Office, counsel for Brenda Cassellius.

Benjamin Loetscher, Esq., and Ferdinand F. Peters, Esq., Ferdinand F. Peters, Esq. Law
Firm, counsel for Movants Muslim American Society of Minnesota, Minnesota
Education Trust, MAS-Minnesota Property Holding Company, Blaine Property Holding
Company, and Minnesota Education Trust.

INTRODUCTION
This matter is before the Court on a Motion for Summary Judgment brought by
Defendants Tarek ibn Ziyad Academy (“TiZA”) and its directors, Asad Zaman, Asif
Rahman, Mahrous Kandil, Mona Elnahrawy, Moira Fahey, and Mohammed Farid (the
“Individual Defendants”) (collectively, the “TiZA Defendants”); a Motion for Summary
Judgment on Crossclaim for Indemnification Against TiZA brought by Defendant Islamic
Relief USA (“Islamic Relief”); and a Motion for Summary Judgment on Crossclaim for
Indemnification Against TiZA brought by Defendant Commissioner of Education (the
“Commissioner”).1 For the reasons set forth below, the Court grants in part and denies in
part the motions.2

1

Together, Islamic Relief and the Commissioner are referred to as the
“cross-claimants.”
2

The Commissioner originally moved for summary judgment on Plaintiff’s claims.
Plaintiff has since settled its claims against Islamic Relief and the Commissioner. The
Commissioner has withdrawn the portion of her motion for summary judgment directed
against Plaintiff’s claims, without prejudice to re-file the motion should the settlement
not be approved. Thus the Court only reaches the Commissioner’s motion as to her
cross-claim for indemnification and denies without prejudice the portion directed against
Plaintiffs’ claims as moot.

2

BACKGROUND

Plaintiff American Civil Liberties Union of Minnesota (“Plaintiff”) is “a
not-for-profit, non-partisan, membership-supported organization dedicated to the
protection of civil liberties.” (Am. Compl. ¶ 4.) TiZA is a charter school organized
under the Minnesota Charter School Law (“MCSL”) with campuses in Blaine and
Inver Grove Heights, Minnesota. Islamic Relief is a California not-for-profit
organization that acts as TiZA’s sponsor.3 The Minnesota Department of Education
(“MDE”) is a state agency charged with carrying out the MCSL and dispersing state
funds. The MDE was originally named as a defendant, but all claims against the MDE
have been dismissed. (Doc. No. 60 at 6 n.2.) The Commissioner is charged with
approval and oversight of charter schools and with certification of schools’ entitlement to
state funding. (Id. at ¶ 8.)
This case has already involved extensive motion practice, which will not be
recounted in full here. Plaintiff brought this action against Defendants seeking
declaratory and injunctive relief based on allegations that TiZA Defendants have used tax
funds to establish a school that promotes the religion of Islam in violation of the
Establishment Clause of the First Amendment to the United States Constitution and the
Minnesota Constitution. In 2009, TiZA Defendants moved to dismiss Plaintiff’s original
complaint. The Court granted in part and denied in part that motion. (Doc. No. 60.) In

3

Islamic Relief has indicated that it will not be TiZA’s sponsor after the 2010-11
school year.

3

August 2009, Plaintiff filed an Amended Complaint, alleging violations of the
Establishment Clauses of the Minnesota and United States Constitutions. (Doc. No. 66.)
Both Islamic Relief and the Commissioner brought cross-claims against TiZA for
indemnification. (Doc. Nos. 74 & 96.) TiZA Defendants moved to dismiss the Amended
Complaint and for judgment on the pleadings. By an order dated May 7, 1010, the Court
denied the motion. (Doc. No. 260.)
The Court now addresses the present motions for summary judgment.
DISCUSSION
I.

Summary Judgment Standard
Summary judgment is proper if there are no disputed issues of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The
Court must view the evidence and the inferences that may be reasonably drawn from the
evidence in the light most favorable to the nonmoving party. Enter. Bank v. Magna Bank
of Mo., 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated,
“[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed
‘to secure the just, speedy and inexpensive determination of every action.’” Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
The moving party bears the burden of showing that there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Enter. Bank,
92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in
the record that create a genuine issue for trial. Krenik v. County of Le Sueur,
4

47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for
summary judgment “may not rest upon mere allegations or denials of his pleading, but
must set forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
II.

TiZA Defendants’ Motion for Summary Judgment
TiZA Defendants move for summary judgment on numerous grounds. The Court

will address each in turn.
A.

Plaintiff’s Authority to Maintain this Action

TiZA Defendants assert that the Plaintiff cannot maintain this action because the
ACLU of Minnesota does not exist. In particular, TiZA Defendants submit that
ACLU-MN is the assumed name of Minnesota Civil Liberties Union (“MCLU”), and that
Plaintiff failed to file an annual renewal notice with the Secretary of State in 2005 for
MCLU. As a result of that failure, the Secretary of State dissolved MCLU as of
January 26, 2006. (Decl. of Shamus P. O’Meara (“O’Meara Decl.”) ¶ 3, Ex. 2.) TiZA
Defendants assert, therefore, that Plaintiff, as the assumed name of a dissolved
non-existent corporation, cannot maintain this lawsuit.
Plaintiff responds that a corporate filing lapse does not affect its ability to maintain
this suit because it brought the suit in its capacity as a “not-for-profit, non-partisan,
membership supported organization.” (Am. Compl. ¶ 4.) Plaintiff maintains that as an
unincorporated association, it has the right to sue in the name of the association. Plaintiff

5

also maintains that it has operated continuously as a non-profit, member-supported
organization since its inception.
Federal Rule of Civil Procedure 17 provides in part:
(b)
Capacity to Sue or Be Sued. Capacity to sue or be sued is
determined as follows:
(1) for an individual who is not acting in a representative capacity,
by the law of the individual’s domicile;
(2) for a corporation, by the law under which it was organized; and
(3) for all other parties, by the law of the state where the court is
located, except that:
(A) a partnership or other unincorporated association with
no such capacity under that state’s law may sue or be sued in
its common name to enforce a substantive right existing under
the United States Constitution or laws . . .
Fed. R. Civ. P. 71(b)(1)-(3) (emphasis added). Further, Minn. Stat. § 540.151 provides in
part:
When two or more persons associate and act, whether for profit or not,
under the common name . . . whether such common name comprises the
names of such persons or not, they may sue in or be sued by such common
name, and the summons may be served on an officer or a managing agent
of the association.
Minn. Stat. § 540.151. The Eighth Circuit Court of Appeals recognized that this
Minnesota Statute “permits persons associated under a common name to sue under that
name” and that associations can have standing to assert their members’ rights. Minn.
Assoc’n of Nurse Anesthetists v. Allina Health Sys. Corp., 276 F.3d 1032, 1049-50 (8th
Cir. 2002).

6

Here, the record establishes that Plaintiff brought this action as a “not-for-profit,
non-partisan, membership supported organization” and not in its corporate capacity. The
record also establishes that Plaintiff brought this action on behalf of its members. Thus,
the Court concludes that Plaintiff’s failure to make required corporate filings in a timely
manner does not warrant the dismissal of Plaintiff’s claims.4
B.

Claim on Behalf of its Purported Members

TiZA Defendants argue that Count I of Plaintiff’s Amended Complaint must be
dismissed because Plaintiff cannot maintain a § 1983 lawsuit on behalf of its members.
TiZA Defendants assert that because § 1983 rights are personal and § 1983 is a civil
rights tort statute, an organization may not bring suit to redress the federally-protected
rights of its members.
The Court disagrees. In its previous order, the Court concluded that Plaintiff has
taxpayer standing to assert its Establishment Clause claims. (Doc. No. 60 at 12.)5
Further, under Eighth Circuit law, Plaintiff may pursue its § 1983 claims on behalf of its
members. In Coalition for Sensible & Humane Solutions v. Wamser, 771 F.2d 395, 399

4

While not determinative, the Court questions TiZA Defendants’ delay in raising
this argument. TiZA Defendants have filed two prior motions to dismiss, but failed to
raise this issue before now.
5

In that order, the Court explained that there is a general prohibition against
taxpayer standing, and that there is a narrow exception to that general rule—the exception
being that a taxpayer will have standing to invoke federal judicial power when that
taxpayer challenges congressional taking and spending that violates the Establishment
Clause. (Doc. No. 60 at 9 (citing Flast v. Cohen, 392 U.S. 83 (1968)).)

7

(8th Cir. 1985), a nonpartisan, unincorporated coalition of individuals and organizations
formed to help minorities and low income persons participate in the political process
brought a lawsuit challenging the constitutionality of voting registration policies of the
election board. 771 F.2d at 396. The coalition alleged that the challenged policies
violated the fundamental constitutional rights of its members to freedom of speech, due
process, and equal protection. Id. at 398. The Eighth Circuit held that the coalition “has
standing on the basis of any injury to its members” and explained that “[h]ere, the
Coalition alleged that the Board’s refusal to appoint individual Coalition members as
deputy registration officials injured them by preventing them from registering new
voters” and that this injury was likely to be redressed by the relief requested. Id. at 399.
Here, Plaintiff claims that its members have been injured. Specifically, Plaintiff
alleges that its members are taxpayers and that their taxes are being used to support the
operation of a religious school. (Am. Compl. ¶ 5.) Based on that alleged injury, the
Court concludes that Plaintiff has a right to bring its § 1983 claim.6
C.

Claim Under the Minnesota Constitution

In Count II of its Amended Complaint, Plaintiff alleges a violation of the
Minnesota Establishment Clause. TiZA Defendants assert that this count should be
dismissed because there is no private cause of action under the Minnesota Constitution.
6

See also Straights and Gays for Equality (SAGE) v. Osseo Area Schools-District
No. 279, 540 F.3d 911, 916 (8th Cir. 2008) (affirming district court’s issuance of a
permanent injunction in a § 1983 case brought by an organization to enforce its members’
rights under the Federal Equal Access Act).

8

Plaintiff disagrees and contends that Minnesota courts have recognized claims under
Minnesota’s Establishment Clause. In addition, Plaintiff argues that TiZA Defendants’
argument is inconsistent with their own position that the Individual Defendants are
entitled to the protections afforded by the Minnesota Constitution.
In support of its position, TiZA Defendants cite to Reihm v. Engelking, 2007 WL
37799 (D. Minn. 2007), aff’d 538 F.3d 952 (8th Cir. 2008); Guite v. Wright, 976 F. Supp.
866, 871 (D. Minn. 1997); and Danforth v. Star Tribune, 2010 WL 4286242 (Minn. App.
Nov. 2, 2010). While each of these cases stand, generally, for the proposition that
Minnesota has no statutory scheme providing for private actions based on violations of
the Minnesota Constitution, none of these cases addressed state constitutional claims
based on the Establishment Clause.
In contrast, Plaintiff cites to several cases wherein Minnesota courts have
recognized the right of a private party to sue under Minnesota’s Establishment Clause.
See, e.g., Americans United Inc. v. Indep. Sch. Dist. No. 622, 179 N.W.2d 146, 155
(Minn. 1970) (considering the merits of a private party’s claim under the Minnesota
Establishment clause); Stark v. Indep. Sch. Dist. No. 640, 938 F. Supp. 544 (D. Minn.
1996), rev’d on other grounds by 123 F.3d 1068 (8th Cir. 1997) (same); Minn. Higher
Educ. Facilities Auth. v. Hawk, 232 N.W.2d 106, 107-09 (Minn. 1975) (considering the
merits of a non-profit organization’s claim under the Minnesota Establishment Clause);
Minn. Fed’n of Teachers v. Mammenga, 485 N.W.2d 305, 307-08 (considering teachers
union’s challenge of state law under Minnesota’s Establishment Clause); Minn. Fed’n of
Teachers v. Mammenga, 500 N.W.2d 136, 138-39 (Minn. Ct. App. 1993) (same).
9

The Court concludes that private parties have the right to assert challenges under
the Minnesota Establishment Clause. Therefore, the Court denies TiZA Defendants’
motion for summary judgment as to Count II of Plaintiff’s Amended Complaint.
D.

Claim for a Refund of Student Aid

In this lawsuit, Plaintiff seeks “[p]reliminary and permanent injunctive relief
requiring Defendants to correct and eliminate establishments of religion by [TiZA] and to
refund to the state of Minnesota the pro rata portion of student aid [TiZA] has received by
students.” (Am. Compl., Prayer for Relief.) TiZA Defendants acknowledge that this
Court has already determined that Plaintiff’s members have taxpayer standing under
Flast v. Cohen, 392 U.S. 83 (1968) (Doc. No. 60), but maintain that Plaintiff cannot
recover a refund of student aid under Flast.
The Court disagrees. In Americans United for Separation of Church and State v.
Prison Fellowship Ministries, 509 F.3d 406 (8th Cir. 2007), the Eighth Circuit Court of
Appeals reviewed the district court’s order requiring certain religious groups to repay
funds received by the state in violation of the Establishment Clause. 509 F.3d at 426-27.
The Eighth Circuit determined that the district court abused its discretion in granting
recoupment for services that were rendered prior to the district court’s order finding an
Establishment Clause violation. Id. at 428. The Eighth Circuit explained that the district
court failed to properly consider the relevant factors and testimony, including factors
demonstrating good faith on the part of the state legislature and the views of prison

10

administrators. Id. at 427-28. The Eighth Circuit did not, however, hold that such
equitable relief was never available under Flast.7 Accordingly, the Court denies TiZA
Defendants’ motion for summary judgment on Plaintiff’s claim for relief seeking a refund
to the state of the pro rata portion of student aid received by TiZA.
E.

Official Capacity Claims

TiZA Defendants seek to dismiss Plaintiff’s claims against the Individual
Defendants in their official capacities because they are redundant of the claims against
TiZA. In support, TiZA Defendants rely on Veatch v. Bartels Lutheran Home, 627 F.3d
1254 (8th Cir. 1998), and numerous cases from other circuits and districts.8 Upon
review, these cases stand for the proposition that a court may dismiss official capacity
claims against individuals when those claims are redundant because, for example, they
are equivalent to the claims against the government entity. Here, Plaintiff has alleged
that the Individual Defendants have taken actions as individuals that violate the law. For
example, Plaintiff alleges that Individual Defendants submitted false statements hiding

7

TiZA Defendants rely on Lakowski v. Spellings, 546 F.3d 822, 827-28
(7th Cir. 2008), for the proposition that the Flast exception permitting taxpayer standing
does not extend to suits for retrospective monetary relief. Lakwoski, however, is
distinguishable from the present case. In Lakowski, the Seventh Circuit held that federal
taxpayers challenging a specific congressional earmark under the Establishment Clause
could not pursue the remedy of restitution of grant money from a party intermediary who
distributed the funds to a private grant recipient. Id. at 828. Here, however, TiZA
Defendants are the end recipients of the state funds for which Plaintiff seeks restitution.
8

TiZA Defendants also cite to Will v. Michigan, 491 U.S. 58, 71 (1989), for the
general proposition that “[a] suit against a state official in his or her official capacity is
not a suit against the official but rather is a suit against the official’s office.”

11

conflicts of interest with religious organizations in lease aid applications with the state;
engaged in campaigns to hide their status as leaders of the Muslim organization that was
TiZA’s landlord; and solicited funds for school projects in the name of Islam. (Decl. of
Katie C. Pfeifer (Doc. No. 550), App. Tabs 147, 149, 203, 204, 208, 209, 562, 607, 638
& Tab AA, Tab B (Dep. of Asad Zaman (“Zaman Dep.”) at 372-76; 379-81, 709-11,
725-26,); Tab. L (Dep. of Dr. Ahmad El Bendary (“El Bendary Dep.”) at 73-79); Tab M
(Dep. of Luke Amundson (“Amundson Dep.”) at 210-11).)9 The Court concludes that the
claims against the Individual Defendants in their official capacities may properly remain
before the Court and that allowing these claims to proceed will not create any additional
burden to the Court or the parties. Thus, the Court denies TiZA Defendants’ motion for
summary judgment as to Plaintiff’s claims against the Individual Defendants in their
official capacities.
F.

Claim for Prospective Injunctive Relief

TiZA Defendants assert that Plaintiff’s request for prospective injunctive relief
cannot be granted against any of the Individual Defendants in their individual capacities.
In particular, TiZA Defendants argue that Plaintiff’s request that the Court require TiZA

9

Plaintiff relies on the Declaration of Katie C. Pfeifer, which was submitted in
support of the Stipulated Facts submitted by Plaintiff, Islamic Relief, and the
Commissioner. (Doc. No. 550.) Plaintiff does not submit the Stipulated Facts
themselves as evidence in opposition to the TiZA Defendants’ motion for summary
judgment, but rather relies on the documents and testimony underlying the Stipulated
Facts, which are cited in and attached to the Pfeifer Declaration.

12

Defendants to eliminate the alleged establishment of religion may not be granted against
any official in his or her individual capacity.
Plaintiff argues that it is entitled to obtain injunctive relief against the Individual
Defendants in their individual capacities. In particular, Plaintiff asserts that the
Individual Defendants have participated in and controlled various religious organizations
that have turned TiZA into a religious school, and that this individual participation is an
important element to be considered.
There is no dispute that under Eighth Circuit law, public officials may be sued
under § 1983 in their official or individual capacity, or both. Johnson v. Outboard
Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). A plaintiff, however, may only obtain
damages against an individual defendant in his or her individual capacity, but not in the
individual’s official capacity. Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir. 1997).
A plaintiff may obtain injunctive relief against an individual defendant in his or her
official capacity. Id. However, as to the question of whether a plaintiff can obtain
injunctive relief under § 1983 against an official in his or her individual capacity, both
parties acknowledge that they were unable to locate an Eighth Circuit case on point.
TiZA Defendants instead rely on Greenwalt v. Indiana Department of Corrections, 397
F.3d 587 (7th Cir. 2005) and various district court cases outside of Minnesota. In
Greenwalt, the court held that § 1983 does not permit injunctive relief against state
officials sued in their individual capacity. 397 F.3d at 589. TiZA Defendants argue that
the same holding should apply here.

13

The Court agrees with Plaintiff that the nature of relief sought by Plaintiff in this
case and the alleged roles of the Individual Defendants at TiZA and other religious
organizations make this case unique. Here, Plaintiff alleges that the Individual
Defendants participated in and controlled the activities of several religious organizations
that influenced the various school policies at TiZA that Plaintiff now contends endorse
and promote the religion of Islam. Thus, this case involves allegations regarding actions
taken by the Individual Defendants both within and outside the scope of their official
duties. The Court concludes that it is appropriate to allow Plaintiff’s claim for
prospective injunctive relief against the Individual Defendants in their individual
capacities to proceed.
G.

Claims Against Individual Defendants for Refund of Student Aid

TiZA Defendants seek to dismiss any claim against the Individual Defendants,
insofar as the claim seeks a refund of student aid from those defendants individually.
TiZA Defendants assert that while Plaintiff demands that Defendants return the pro rata
portion of student aid TiZA received from the state, Plaintiff’s Executive Director stated
in his deposition that Plaintiff is not seeking any refund from TiZA Defendants in their
individual capacities, and that during an oral argument before the Court in March 2010,
counsel for Plaintiff indicated that Plaintiff was only seeking such refund from TiZA
Defendants who actually received student aid.
Plaintiff acknowledges that it is not seeking a claim for refund of student aid for
any individual defendant who did not receive student aid funds. However, Plaintiff
maintains that Individual Defendant Zaman has received wrongful financial benefits that
14

should be refunded. For example, Plaintiff asserts that the record demonstrates that while
working as an administrator for TiZA on a part-time basis, Zaman received certain
financial benefits, such as a full-time salary and payment to attend the Carlson School of
Business at the University of Minnesota to obtain an MBA. (Pfeifer Decl., App. Tabs
632, 633 & Zaman Dep. at 874, 878-79.) Plaintiff maintains that these and other funds
should be refunded.
TiZA Defendants assert that Zaman’s compensation package is below the state
charter school average for like-sized schools. TiZA Defendants also assert that Plaintiff
has not provided any evidence that Zaman received student aid in violation of the
Establishment Clause.
The Court concludes that Plaintiff has pointed to sufficient evidence so as to create
a factual issue as to whether Zaman has received wrongful financial benefits that should
be refunded. For that reason, the Court denies TiZA Defendants’ motion for summary
judgment as to Plaintiff’s claim for a refund of student aid from Zaman.10
H.

Claims Against Individual Defendants for Attorney Fees

TiZA Defendants seek to dismiss any purported claim for attorney fees as asserted
against the Individual Defendants in their individual capacities. In its Prayer for Relief in
its Amended Complaint, Plaintiff seeks “Plaintiff’s attorneys’ fees and costs of suit
10

Because Plaintiff did not direct the Court to any record evidence supporting a
claim for a refund against any of the other Individual Defendants, the Court considers
such claims to have been waived or withdrawn. Accordingly, the Court dismisses any
claim for a refund of student aid as asserted against defendants Asif Rahman, Mahrous
Kandil, Mona Elnahrawy, Moira Fahey, and Mohammed Farid.

15

pursuant to 42 U.S.C. § 1988, against the Commissioner, TIZA, and Islamic Relief.”
(Am. Compl. at 21.) Plaintiff is not seeking an award of attorney fees against the
Individual Defendants. Because no such claim has been made, the Court denies this
portion of TiZA Defendants’ motion for summary judgment as moot.
I.

Claims Against Individual Defendants for Deprivation of
Constitutional Rights

TiZA Defendants assert that Plaintiff has failed as a matter of law to establish that
individual conduct on the part of any of the Individual Defendants caused any alleged
deprivation of the taxpayers’ constitutional rights.
Through this lawsuit, Plaintiff asserts that TiZA and the Individual Defendants
established school policies that endorse and promote Islam and have used tax funds to
establish a pervasively religious school. Plaintiff further alleges that the Individual
Defendants have close ties with several religious organizations, including the Muslim
American Society of Minnesota (“MAS-MN”). Plaintiff further contends that the record
establishes that the Individual Defendants are linked by a complex set of personal,
corporate, and operational relationships with MAS-MN and other religious organizations,
such as Minnesota Education Trust (“MET”), MAS-MN Holding, and the Blaine
Property Holding Corporation.
With respect to these organizations, Plaintiff points to record evidence supporting
the following: MAS-MN is a Minnesota not-for-profit organization whose principal goal
is to “attain the pleasure of Allah (God)” by, without limitation, presenting the message
of Islam to Muslims and non-Muslims, helping Muslims understand, practice, and live

16

the religion of Islam, promoting family values in accordance with Islamic teachings, and
promoting the Arabic language and the seminal teaching of the Quran. (Pfeifer Decl.,
App. Tab EE.) MAS-MN Holding was at all relevant times a subsidiary of the national
Muslim American Society (“MAS”). MAS-MN Holding was also the landlord for
TiZA’s Inver Grove Heights Campus. MAS-MN purported to transfer MAS-MN
Holding, including its ownership of the Inver Grove Heights Campus, to MET in or about
August 2007 through a trust agreement. The trust agreement provided that the
Inver Grove Heights Campus would “only be used for charitable, educational, religious &
Islamic purposes within the limits ordained by the Quran and Sunnah and may not be
used for any activity that may violate the Islamic moral, social, religious and spiritual
norms, regulations and guidance as determined by MET.” (Pfeifer Decl., App. Tab 283.)
MET is the landlord for TiZA’s Blaine Campus. In May 2008, MET transferred
the Blaine Campus to its subsidiary, Blaine Holding. In an agreement with Blaine
Holding, MET agreed to “promote the establishment and operation of schools in pursuit
of” goals that include (1) the presentation of the message of Islam; (2) the promotion of
family values in accordance with Islamic teachings; and (3) the promotion of the Arabic
language and the seminal teachings of the Quran. (Pfeifer Decl., App. Tab 238.) Blaine
Holding later transferred the Blaine Campus back to MET.
Plaintiff’s allegations are lodged against both TiZA and the Individual Defendants.
Plaintiff asserts that as a legal entity, TiZA cannot act except through the individuals who
operate the school and that the Individual Defendants’ actions informed and directed the
policies and direction of the school. Plaintiff focuses on the Individual Defendants’
17

respective roles on the TiZA Board of Directors (the “TiZA Board”) and as officers for
TiZA, as well as their positions at related Muslim organizations (including TiZA’s
co-tenant and landlord) with which Plaintiff asserts TiZA has effectively merged. The
parties have directed the Court to record evidence relevant to the Individual Defendants’
involvement with TiZA and the allegedly related religious organizations. The Court will
summarize the record evidence, in the light most favorable to Plaintiff, with respect to
each Individual Defendant in turn.
Asad Zaman
Zaman has been the Executive Director of TiZA since 2003 and a member of the
TiZA Board from its formation until June 2009. As a member of the TiZA Board, Zaman
served as Chairman, Secretary, and Treasurer. From the time of TiZA’s founding until at
least mid-2008, Zaman also acted in some capacity at MAS-MN—including as an
“Active Member,” President, Vice-President, Secretary, and Treasurer.11 In addition,
Zaman served as the secretary of MET.
Asif Rahman
Rahman has been a member and/or trustee of and a disbursement authorizer for
TiZA. Rahman has also served as the Chair and President of MET since its formation in
2007, and President and Chair of the Board of MAS-MN Holding. Rahman is also a

11

Plaintiff has pointed to record evidence that Zaman resigned as an officer and
board member of MAS-MN on August 1, 2008, but that between 2008 and 2010, Zaman
continued to communicate using a MAS-MN e-mail address.

18

member of the Board and an officer of Blaine Holding. Rahman has also been an officer
of the Islamic Association of the Twin Cities.
Mahrous Kandil
Kandil was a trustee, Director, Secretary, and eventually the Chair of the Board at
TiZA. Kandil is the current chair of the TiZA Board and the Blaine Campus Director.
For much of 2008, Kandil served as a member of the TiZA Board, director of the Blaine
campus, and the President of MAS-MN. Kandil has been an “Active Member,” a
member of the board of directors, and a treasurer at MAS-MN. Kandhil resigned from
MAS-MN at the end of 2008. Kandil was also an incorporator of MET, and served as the
MET’s vice president and officer in 2007. Kandil signed on behalf of MET on the
purchase agreement for the Blaine Campus. Kandil also served as a director of
MAS-MN Holding.
Mohamed Farid, Moira Fahey, and Mona Elnahrawy
The record establishes that Farid was a founder of TiZA and current member of
the TiZA Board; Moira Fahey is a trustee of TIZA and member of theTiZA Board; and
Mona Elnahrawy is a member of the TiZA Board.
Based on its review of the record, the Court concludes that, viewing the evidence
in the light most favorable to Plaintiff, a reasonable juror could conclude that Zaman,
Rahman, and Kandil are individually liable for the alleged constitutional violations at
TiZA. However, the Court concludes that there is insufficient evidence in the record to
raise a genuine issue of material fact as to whether Farid, Fahey, and Elnahrawy are
individually liable. The Court therefore grants TiZA Defendants’ motion for summary
19

judgment only as to the claims against Farid, Fahey, and Elnahrawy, in their individual
capacities.12
J.

Establishment Clause Violation

In its Amended Complaint, Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 for
alleged violations of the Establishment Clause of the First Amendment to the
U.S. Constitution. To prevail on a claim under § 1983, a plaintiff must demonstrate that a
defendant acted under the color of state law and that his or her actions deprived a plaintiff
of a constitutional or federal statutory right. See Hott v. Hennepin County, 260 F.3d 901,
905 (8th Cir. 2001) (citing Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986)). The
First Amendment provides “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . . .” U.S. CONST. amend. I.
The parties agree that the applicable test for evaluating whether state action has
violated the Establishment Clause is the test established in Lemon v. Kurtzman, 403 U.S.
602, 612-13 (1971). “In order to satisfy the Lemon test, a challenged governmental
action must (1) have a secular purpose, (2) not have the primary principal effect of
advancing religion, and (3) not foster an excessive entanglement with religion.” Lemon,
403 U.S. at 612. Accord Stark, 123 F.3d at 1073. With respect to the first prong, the
12

The holding on these claims also informs the Court’s ruling in Section II.F above,
wherein the Court determined that Plaintiff’s claim for injunctive relief against the
Individual Defendants in their individual capacities could proceed. In light of the Court’s
conclusion that there is insufficient evidence in the record to raise a genuine issue of
material fact as to whether Farid, Fahey, and Elnahrawy are individually liable, Plaintiff’s
claim for injunctive relief against them in their individual capacities is also dismissed.

20

Court reviews both the express language of the questioned policy and the motivations
behind the policy. See Florey v. Sioux Falls Sch. Dist., 619 F.2d 1311, 1314-15 (8th Cir.
1980). With respect to the second prong, the Court considers whether the primary effect
of the policy advances religion. Lemon, 403 U.S. at 612. For a law to have forbidden
“effects,” it must be fair to say that the government has advanced religion through its own
activities and influence. Stark, 123 F.3d at 1074-75. The third prong requires the Court
to consider whether the state must engage in continuing administrative supervision of
nonsecular activity. See, e.g., id. at 1075.
Plaintiff asserts that TiZA’s practices in combination establish a pervasively
sectarian atmosphere for the purpose of promoting the single religion of Islam. Plaintiff
asserts that these practices include TiZA’s school lunch program, school calendar,
carpeted area, transportation schedule, school logo, and school name. In addition,
Plaintiff contends that there is record evidence that TiZA’s motivation from the start has
been to establish a Muslim school with public funds, and that this intent bears on the
Lemon analysis. In support, Plaintiff directs the Court to portions of the record that it
claims establish that Defendants intended to and succeeded in creating a Muslim school
with public funds. This record contains evidence of, but not limited to, the following:
• In 2002, an agent for MAS purchased TiZA’s Inver Grove Heights
Campus, and entered into an agreement that read in part:
“It is not the intent of the parties to preclude a charter school that is
geared towards providing Muslim culture education to children of
Muslim American Society members & supporters. . . .”
...

21

Buyer shall use the Property to provide education to people of the
Muslim Religion. Buyer agrees not to compete with Independent
School District No. 199 by not taking any of their public school
children. Parents . . . of children of the Muslim faith have the right
to freely transfer their children between Buyer and Independent
School District No. 199.
(Pfeifer Decl., App. Tab A (Dep. of Mahdi Nur) at 64, 65; App. Tab 288.)
• In 2007, MAS-MN transferred its purported subsidiary MAS-MN Holding,
including ownership of the Inver Grove Heights Campus, to MET, through
an Islamic trust agreement. The trust agreement provided in part that the
parties “shall ensure that the REAL PROPERTY shall only be used for
charitable, educational, religious & Islamic purposes within the limits
ordained by the Quran and Sunnah and may not be used for any activity
that may violate the Islamic moral, social, religious and spiritual norms,
regulations and guidance as determined by MET.” (Id. App. Tab 283.)
• MAS-MN distributed brochures in connection with its annual conferences.
The brochures also contained applications for TiZA which indicated that
TiZA is dedicated to “Preserving Our Values & Achieving Academic
Excellence.” By way of example, one such brochure read in part:
ESTABLISHING ISLAM IN MINNESOTA
Did you know that MAS-MN
...
•
Houses a full-time school
...
•
Provides after-school Islamic learning weekdays at the MAS Center
(Pfeifer Decl., App. Tab. 136.) Another brochure read in part:
ESTABLISHING ISLAM IN MINNESOTA
Did you know that MAS-MN
...
•
Operates four masjids in the Twin Cities
•
Operates the MAS-MN Community Center in Inver Grove Heights
•
Houses a full-time school
...
•
Provides after-school Islamic learning weekdays at the MAS Center

22

...
Tarek ibn Ziyad Academy
• An integral component of the comprehensive MAS Community
Center
• A full-time elementary school
• Currently serves over 190 students
• Free tuition for all students
• Free bus service to most locations in the Twin Cities
• Comprehensive Arabic language program
• Strong academic program
• Licensed teachers
(Pfeifer Decl., App. Tab. 525.)
• Zaman allowed students at TiZA assemblies to chant “Allahu Akbar,”
which means “God is Great” in Arabic and is repeated in Islamic Prayers.
• Curriculum materials for the Arabic language program contained religious
instruction. (Decl. of Samer Ali (“Ali Decl.”) ¶ 1, Ex. A.)
• TiZA serves halal (pork-free) food to its students and has instructed parents
not to send pork, gelatin, lecithin, or milk/dairy products to school with
their children. (Pfeifer Decl., App. Tabs. 119, 122, 415.)
• An Islamic school would serve halal food because it is a Quranic
injunction. (Ludmer Decl. ¶ 3, Ex. B, Report of Dr. Shadee Elmasry, Ph.D.
¶ 3C.)
• TiZA uses a carpeted area on the lower level for student prayer; some
teachers refer to the carpet as a “musallah carpet”13; tape has been used on
the carpet to indicate the direction of Mecca while praying. (Pfeifer Decl.,
App. Tabs 105, 106, 398; App. Tab O (Dep. of Tasia Islam (“Islam Dep.”)
at 86-89); App. Tab G (Dep. of Moira Fahey (“Fahey Dep.”) at 96-99,
106-7, 110-12, 143-44); (App. Tab T (Dep. of James Froehle (“Froehle
Dep.”) at 43-45, 100).)

13

“Musallah” means “prayer area.” (Dep. of Tasia Islam (“Islam Dep.”) at 87.)

23

• Lesson plans for TiZA’s Arabic classes indicate the days
surrounding significant Islamic celebrations or “Eids” and on such days
class time is allotted for activities such as coloring pages “on the occasion
of Eid,” and writing “[s]entences for Eid greeting cards on the occasion of
the Holy Eid al-Adha” including phrases “May God Bless and Forgive
Him.” (Ali Decl. ¶ 2, Ex. A at 4-6.)
Plaintiff also points to evidence in the record that it claims shows that the school
logo incorporates religious symbolism (Pfeifer Decl, App. Tabs 120, 637); the school
name is based on a historical figure who dramatically expanded the Islamic empire into
the west in the 8th century (Ali Decl. ¶ 1, Ex. A at 33); that TiZA’s bus service, which
only provides after-school service forty-five minutes after the end of the school day,
enables TiZA to provide Islamic instruction through an after-school Islamic Studies
program provided by MAS-MN on TiZA’s campus; and that through a series of lease
agreements, TiZA has paid increasing rent for less space and has spent public money on
capital improvements that provide a windfall for MET and MAS-MN.
TiZA Defendants assert that the school policies to which Plaintiff objects do not
violate the Establishment Clause as a matter of law. In particular, TiZA Defendants
assert that Plaintiff cannot, as a matter of law, show that TiZA’s transportation, school
lunch program, calendar, lease agreement, use of carpeted area, use of titles, school logo,
or school name are unconstitutionally impermissible. TiZA Defendants assert that all of
the above policies have a secular purpose, do not principally or primarily enhance
religion, and do not foster an excessive entanglement with religion.
For example, TiZA Defendants assert that its after-school bus schedule allows the
school to save money because it uses “off-peak” busing hours, while also allowing

24

students to participate in after-school programs, including Boy Scouts and Girl Scouts.
(O’Meara Decl. ¶ 12, Ex. 11.) TiZA Defendants also contend that its school lunch
program simply accommodates the nutritional demands of its students and their parents,
and complies with the Federal School Lunch Program, which mandates that student food
preferences be considered in developing menu offerings. In addition, TiZA Defendants
assert that the school calendar does not favor religion and that by accommodating
Muslim students, it avoids excessive absences; its leases are not religious, but reflect
prudent secular financial planning; the carpeted area is also used for numerous secular
purposes and is not a “prayer rug”; TiZA’s name does not promote religion; and that
there is no evidence that TiZA’s alleged religious activities have caused excessive
oversight by the MDE.
Viewing the record in the light most favorable to Plaintiff, the Court determines
that a reasonable juror could conclude that TiZA’s practices establish a pervasively
sectarian atmosphere for the purpose of promoting Islam. In particular, a reasonable
juror could conclude that TiZA was founded specifically to create a religious school and
that elements of its operation have the primary principal effect of advancing the religion
of Islam. Accordingly, the Court denies TiZA Defendants’ motion for summary
judgment on Plaintiff’s Establishment Clause claims.
III.

Indemnification
In this action, both the Commissioner and Islamic Relief have asserted

cross-claims for indemnification against TiZA. TiZA Defendants, Islamic Relief, and the

25

Commissioner all move for summary judgment on the asserted cross-claims for
indemnification.
The MCSL requires a charter school to have a sponsor or authorizer. “The
authorization for a charter school must be in the form of a written contract signed by the
authorizer and the board of directors of the charter school.” Minn. Stat. § 124D.10,
subd. 6 (6). In 2003, Islamic Relief and TiZA entered into a Charter School Contract (the
“Contract”). (Aff. of Sara E. Bushnell (“Bushnell Aff.”) ¶ 4, Ex. C.) The Contract has
been renewed twice, first in 2006 and most recently in March 2009. (Id. ¶¶ 5 & 6,
Exs. D & E.)14 Section 5.4 of the both the 2003 and 2006 version of the Contract reads:
The CHARTER SCHOOL shall assume full liability for its activities and
shall indemnify and hold harmless the Commissioner and the Sponsor, its
officers, and their agents and employees from any suits, claims, or liability
arising under this Contract. The parties recognize and agree that the
Commissioner and the Sponsor are immune from liability under this
Contract under Minnesota Statutes section 124D.10, subdivision 25
(1994), as amended, and this paragraph is not intended to modify or
otherwise affect that provision or any other law.
(Id. ¶¶ 4, 5, Exs. C & D at § 5.4.) 15 The Contract also requires that TiZA be
“nonsectarian in its programs, admission policies, employment practices and all other
purposes.” (Id. at § 1.2.)

14

This action was commenced prior to the March 2009 renewal of the Contract.

15

Section 5.4 of the 2009 version of the Contract reads:
The SCHOOL shall assume full liability for its activities and shall
indemnify and hold harmless the SPONSOR, its officers, agents and
employees from any suits, claims, or liability arising under this Contract or
(Footnote Continued on Next Page)

26

This lawsuit was commenced on January 21, 2009. On July 29, 2009, Islamic
Relief sent a letter to TiZA that read in part:
Re:

MnACLU v. TIZA, et al.
Request for Indemnification and Hold Harmless

Pursuant to Section 5.4 of the Charter School Contract, dated June 16, 2006
(“Contract”), on behalf of [Islamic Relief], I write to assert [Islamic
Relief’s] right to seek indemnification from [TIZA] for its defense of the
lawsuit and hold it harm[l]ess. As the lawsuit . . . is based upon the
Contract, TIZA is obligated to indemnify and hold [Islamic Relief]
harmless from such claims. As such, I respectfully request that TIZA
immediately notify its insurance carrier of [Islamic Relief’s] claims against
TIZA. [Islamic Relief] will file a Cross-claim for indemnification and for
TIZA to hold it harmless, based upon the Contract.
(Decl. of Timothy Obitts (“Obitts Decl.”) ¶2, Ex. 1.)
On July 30, 2009, the Commissioner sent a letter to counsel for TiZA:
By this letter, I am notifying [TiZA] that I seek to preserve my rights, if
any, as well as the rights of my officers, agents and employees of the state
of Minnesota, for indemnification under section 5.4 of the Charter School
Contract (effective July 1, 2006) between Islamic Relief and TiZA.
Please notify your insurance company accordingly.
(Aff. of Kathryn M. Woodruff (“Woodruff Aff.”) ¶ 2, Ex. A.)

(Footnote Continued From Previous Page)
arising from operation of the school. The parties recognize and agree that
the SPONSOR is immune from liability under this CONTRACT under the
ACT as amended, and this paragraph is not intended to modify or
otherwise affect that provision or any other law.
(Id. ¶ 6, Ex. E at § 5.4.)

27

Both Islamic Relief and the Commissioner asserted cross-claims against TiZA for
indemnification. TiZA Defendants deny that the cross-claimants are entitled to
indemnification. In February 2010, TiZA Defendants moved for judgment on the
pleadings as to the cross-claims for indemnification. The Court denied that motion.
(Doc. No. 260.)
On December 28, 2010, Islamic Relief advised TiZA that it had reached the terms
of a settlement in principle with Plaintiff, which included a payment of $267,500 in
professional fees and disbursements. (Aff. of Sarah E. Bushnell (“Bushnell Aff.”) ¶ 10,
Ex. I.) Islamic Relief also sought confirmation from TiZA that TiZA would honor its
obligation to indemnify Islamic Relief for the settlement payment plus attorney fees
incurred since Islamic Relief tendered its defense to TiZA or, in the alternative, a
proposal from TiZA to defend Islamic Relief going forward plus a commitment to
indemnify Islamic Relief from any judgment it may suffer in excess of the proposed
settlement amount. (Id.) TiZA declined.
TiZA Defendants assert that they are entitled to summary judgment on the
indemnification cross-claims because the cross-claimants failed to tender the defense to
TiZA; the cross-claimants may not be indemnified for their own conduct; and the
indemnity provision violates public policy. Islamic Relief asserts that it is entitled to
summary judgment on its indemnification claim because the record establishes that it
tendered its defense to TiZA and TiZA’s contractual agreement to indemnify Islamic
Relief is enforceable. The Commissioner similarly argues that there are no genuine
disputes about the Commissioner’s entitlement to indemnification from TiZA, and that
28

the only remaining question is the dollar amount, which cannot be determined until
litigation costs are final.
A.

Tender

“A tender of defense is a condition precedent to the creation of an obligation to
indemnify.” Seifert v. Regents, 505 N.W.2d 83, 87 (Minn. App. 1993). TiZA
Defendants argue that both Islamic Relief and the Commissioner failed to tender the
defense to TiZA. Islamic Relief and the Commissioner contend that their respective July
2009 letters satisfy this condition precedent. TiZA Defendants acknowledge that Islamic
Relief and the Commissioner sent their July 2009 letters, but contend that the letters
failed to request a defense and that this failure is fatal to their demand for indemnity.
The Court concludes that, as a matter of law, both Islamic Relief’s and the
Commissioner’s July 2009 letters constitute a tender of defense and satisfy the condition
precedent. In particular, Islamic Relief’s July 2009 letter notes in the subject line that the
letter was a “Request for Indemnification and Hold Harmless” and specifically states that
Islamic Relief was asserting its “right to seek indemnification from [TiZA] for its defense
of the lawsuit and to hold it harm[l]ess.” (Obitts Decl. ¶ 2, Ex. 1.) This letter
unambiguously asserts Islamic Relief’s right for indemnification under the Contract and
requests that TiZA provide a defense and hold Islamic Relief harmless. The Court
concludes that this constitutes notice and tender to TiZA that Islamic Relief was asserting
its rights under the Contract and requesting that TiZA provide for its defense. Similarly,
the Court concludes that TiZA had notice of its obligation to indemnify the
Commissioner. In her July 2009 letter, the Commissioner notified TiZA that she
29

intended to preserve her rights for indemnification under the Contract and requested that
TiZA notify its insurance company.
B.

Enforceability

The Court next examines the enforceability of the indemnification clause. The
indemnification clause here is enforceable if the clause “(1) is not ambiguous; (2) does
not release intentional, willful, and wanton acts; and (3) does not violate public policy.”
Myers v. Lutsen Mts. Corp., 587 F.3d 891, 894 (8th Cir. 2009). 16

16

Contracting parties may protect themselves from liability through an
indemnification or exculpatory clause. See Anderson v. McOskar Enters., Inc., 712
N.W.2d 796, 799-800 (Minn. Ct. App. 2006). While indemnification and exculpatory
clauses differ in form, “the substantive effect of each to shift liability operates essentially
the same . . . and they are usually given the same treatment by the courts.” Schlobohm v.
Spa Petite, Inc., 326 N.W.2d 920, 922 n.3 (Minn. 1982).
TiZA Defendants, however, assert that the legal analysis of exculpatory clauses
and indemnification clauses are different, and that the analysis of the contested
indemnification clause here should focus on whether the clause provides indemnification
for the cross-claimants’ own negligence. In support, TiZA Defendants rely heavily on
Yang v. Voyagaire Houseboats, 701 N.W.2d 783 (Minn. 2005), for the proposition that
indemnification agreements are subject to greater scrutiny because they release negligent
parties from liability but also may shift liability to innocent parties. Yang, however, was
decided on very different facts that involved contractual indemnification between the
provider of a public service and a private individual, wherein the lessor of a houseboat
attempted to shift liability for its own negligence that resulted in personal injuries to a
private individual. 701 N.W.2d at 792. Here, the record establishes that TiZA
Defendants drafted the indemnification provision, that there is no disparity of bargaining
power between the parties, and that the indemnification clause in Section 5.4 does not
shift liability from a negligent party to an innocent party. Because of the significant
factual differences, Yang does not control the Court’s evaluation of the indemnification
clauses in this case.

30

Consistent with the Court’s previous ruling on TiZA Defendants’ motion for
judgment on the pleadings, the Court concludes that the plain language of Section 5.4
requires TiZA to indemnify and hold harmless both the Commissioner and Islamic Relief
for claims arising under the Contract. In this lawsuit, Plaintiff asserts that Defendants
violated state and federal law by failing to ensure that TiZA operated in a secular and
nonsectarian manner. Section 1.2 of the Contract plainly requires that TiZA be
“nonsectarian in its programs.” (¶ 1.2.) The Court concludes that Section 5.4 therefore
encompasses Plaintiff’s allegations.
Also consistent with the Court’s previous ruling, the Court determines that Section
5.4 does not violate public policy. In so determining, the Court considers (1) whether
there was a disparity of bargaining power between the contracting parties; and (2) the
type of service being offered or provided through the contract. Myers, 587 F.3d at
894-95. To show that Section 5.4 violates public policy, TiZA Defendants must
demonstrate that there was a great disparity in bargaining power, that there was not an
opportunity for negotiation, and that the services could not be obtained elsewhere. See
Schlobohm, 326 N.W.2d at 924-25. Here, a review of the record demonstrates that there
was neither a disparity of bargaining power between contracting parties, nor a lack of
opportunity to negotiate. In addition, the record establishes that Section 5.4 actually
promotes the policy of the state of Minnesota, which provides that charter school
sponsors and the Commissioner should not be subject to liability arising from
sponsorship. Minn. Stat. § 124D.10, subd. 25.

31

For the above reasons, the Court concludes that both Islamic Relief and the
Commissioner are entitled to indemnification under the Contract.
C.

Settlement Payment to Islamic Relief

Islamic Relief seeks indemnification for the settlement agreement between it and
Plaintiff. TiZA Defendants argue that Islamic Relief may not recover any of its
settlement payment because Islamic Relief cannot establish that the settlement was
reasonable and made in good faith. In support, TiZA Defendants assert that there can be
no enforcement of a settlement because Islamic Relief has failed to produce evidence of
the settlement terms by refusing requests to disclose the settlement terms.
Plaintiff has moved the Court for confirmation of its settlement with Islamic Relief
and the Commissioner. That motion is scheduled to be heard before the Court on
April 29, 2011. The Court defers ruling on the issue of whether the settlement was
reasonable and made in good faith until after a decision is made on the motion for
confirmation of settlement.17
CONCLUSION
Based on the files, records, and proceedings herein, and for the reasons set forth
above, IT IS ORDERED that:

17

Islamic Relief also requests that the Court direct entry of a final judgment as to
Islamic Relief’s cross-claim for indemnification against TiZA under Rule 54(b). The
Court also declines to rule on this portion of the motion until a decision is made on the
motion for confirmation of settlement.

32

1.

TiZA Defendants’ Motion for Summary Judgment (Doc. No. [521]) is

GRANTED IN PART and DENIED IN PART as follows:
a.

Plaintiff’s claims against defendants Mohammed Farid, Moira

Fahey, and Mona Elnahrawy are DISMISSED insofar as they are asserted
against them in their individual capacities.
b.

Plaintiff’s claim for a refund of student aid is DISMISSED

insofar as it is as asserted against defendants Asif Rahman, Mahrous
Kandil, Mona Elnahrawy, Moira Fahey, and Mohammed Farid.
2.

Islamic Relief’s Motion for Summary Judgment on Cross-Claim for

Indemnification as Against TiZA (Doc. No. [509]) is GRANTED IN PART.
a.

The portion of Islamic Relief’s motion directed at its

cross-claim for indemnification is GRANTED in that the Court finds that
Islamic Relief is entitled to indemnification under the Contract.
b.

The Court defers ruling on the issue of whether the settlement

between Islamic Relief and Plaintiff was reasonable and made in good faith
and Islamic Relief’s request under Rule 54(b) pending the motion for
confirmation of settlement.
3.

The Commissioner’s Motion for Summary Judgment as to Plaintiff’s Claim

and on Cross-Claim for Indemnification as Against TiZA (Doc. No. [507]) is
GRANTED IN PART and DENIED IN PART as follows:
a.

The portion of the Commissioner’s motion directed against

Plaintiff’s claims is DENIED WITHOUT PREJUDICE AS MOOT.
33

b.

The portion of the Commissioner’s motion directed at its

cross-claim for indemnification is GRANTED.

Dated: April 20, 2011

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

34